October 5, 2011

The two things that. must be proven for a "d” variance are the positive criteria, sometimes called special reasons, and the negative criteria. ‘There are three ways of proving the positive ‘criteria (special reasons): , L "special r - Occasionally, an application for.a 'd" variance is for ause.that, inherently-serves the. ee good. Examples are schools, hospitals, mt plant Because such: a use is gener Wore, te positive be Satisfied, yen if ‘the; us Rarely, spéciat reasoiis. economic inutility can. b ens the any | to. make f isfic Jif ‘undae atds ip Or = un aportant to point out that e use will nat xt aa encourage” municipal action to guide the’ appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals and geréral'welfare;” If number 1 or number 2 above have not been proven, then the applicant must prove that the genéfal welfare ‘will bé pfonioted because the proposéd:site is particularly-siiitable for th proposed usé. ‘Of coprse’ other:8pecial ‘reasons should also be prover. The-Supremé Court discusses’ mg at Yeripth-in two-cases,"Kohl v, Council ‘of: ferowr, 30 N.J, 268 (1967) and Medici v, BPR Co., 107:-N.J. 1 (1987).~ Tf the pésitive criteria (special reasons) ‘has not been proven, the applicant is not entitled to a’vatiatice. “If it‘has béen*préven, then the applicarit must also prove the negative criteria. The. negative criteria has, two parts. “Both of them 1 mus 1 2. ‘The use shall not be substantially. detrimental to the public good. The use shall not substantially impair the intent and purpose of the zone Plan and zoning | ordinance. ; 3 ¥ i i i : { 6

ie # % In a very important case, Medici v. BPR Co. 107 NJ, 1 (1987), the Supreme Court of New Jersey set forth specific requirements when dealing with the négative criteria. The Court indicated that an enhanced quality of proof by the applicant and clear and specific findings by the Board of Adjustment are required to prove that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. These proofs and findings would provide a substantive basis for the concluding statement that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. Conflict of Interest for Board Members: ‘No member ‘of the Boar i of “Adjustinent shall be permitted to act on any matter in whic he /shé. has, either directly or indirectly, any personal or finahéial intérest, The legislature has declared that o 1¢is of property within 2( of the property to be affectét! by a ‘Zoning Board proceeding have an “interest.” A Board Member who owns property within the prescribed distance should disqualify him/herself and may not sit with thé Board, : Where the applicant is related to the Board Member within the third degree of coisaiguinity, or is the spouse of a person who is so related to thé Board Member, the Board Member should disqualify him/herself. -Thus, if the’applicant is the father, mother, grandfather, or grandmothér 6f thie niember or-is an uncle, ‘aunt, brother, sister, niece or nephew, or the spouse of any such person, the Board Member is disqualified to act. A Board Member is disqualified from acting where the applicant is his/her employer, employee, or partner or is a éérporation in which the Board Member is a shareholder or has a financial interest. It is therefore apparent that it would be highly improper for any member of the governing body to represent any interested parties before such boards or even to appear before either board as a proponent or objector, and such appearance woiild undoubtedly be held to vitiate the action of the governing body if the member of the governing body who had so appeared before the Board then sat on the appeal of the same matter. The appearance of the mayor before the Board of Adjustment representing objectors in a variance case was characterized as "patently improper.”

6. Where a Board Meniber i isa member of a church or other ’ organization which is either an applicant or objector, hé/she must disqualify him/herself. ~ vie . , 1: There may, of course, be other: situations where : a conflict of interest may exist. If. you have: any doubt, ask-our: Board ‘Attorney: oat Who hears appeals of Zoning Board deci All appeals of Zoning Board decigions are made’ to Superior Court, except an appeal of an approval of a "d” variance-imay bé takert.to: Township Couneilit-The, reason for the appeal to Council in this case is because a municipal body (with the Planning Board's advice) degides-on the zohing.« of a: municipality : and is-uniguely:qualified to decide “d’ variance. decisions which might . actually impair or-significantly-affect the master plan ‘or zoning ordinance. An in appeal of Council’ 's decision: would be, made to : Superior Court. . How can a Boar Meniber learn more about vatng? 2 H wt oT roe Each Board Member should ‘have a copy ‘of the Municipal Land Use Law, our Land Use Regulations (zoning ordinance), our Master Plan and-the Board’s Rules of Procedure. Le ght £ In addition, the Planning Department has a library of tapes on nai, different zoning and planning{topics that:may be borrowed: by Board: Mémbets: Books are also available for the Board's use: New Jersey.Zoning and Land Use. Admit istration by William M. Sox.4 is: especially helpful - of a!

uiment Page 1 of 2 toahibit B _ VATED THROUGH PLL. 2044, ch. 124, and JR 7) TITLE 40 MUNICIPALITIES AND COUNTIES 40:55D-70 Powers, 40:55D-70 Powers. 57. Powers. The board of adjustment shall have the power to: a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance; b. Hear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by any zoning or official map ordinance, in accordance with this act; c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific picce of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; @) where in an application or appeal relating to a specific piece of property the purposes of this act or the purposes of the "Educational Facilities Construction and Financing Act," P.L.2000, ¢.72 (C.18A:7G-1 et al.), would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act; provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in subsection d. of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning

is subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning board has power to review a request for a variance pursuant to subsection a. of section 47 of. this act; and d. In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: () a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard pursuant to section 54 of P.L.1975, ¢.291 (C.40:55D-67) pertaining solely to a conditional use, (2) an increase in the permitted floor area ratio as defined in section 3.1 of P.L.1975, ¢.291 (C.40:55D-4), (5) an increase in the permitted density as defined in section 3.1 of P.L.1975, 6.291 (C.40:55D-4), except as applied to the required lot area for a lot ot lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act. If an application development requests one or more variances but not a variance for a purpose enumerated in subsection d. of this section, the decision on the requested variance or variances shall be http:/lis.njleg.state.nj-us/cgi-bin/om_isapi.dll?clientID=3 0858234&Depth=2&TD=WRAP.,. 9/28/2011

Document Page 2 of 2 rendered under subsection c. of this section, No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other reliet can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. In respect to any airport safety zones delineated under the "Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.), no variance or other relief may be granted under the terms of this section, permitting the creation or establishment of a nonconforming use which would be prohibited under standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act, L.1975, ¢.291, s.57; amended 1979, c.216, s.23; 1983, ¢.260, s.13; 1984, ¢.20, s.12; 1991, ¢.256, 8.21; 1991, c.445, s.10; 1997, c.145; 2007, c.137, s.60, 40:55D-70.1. Annual report The board of adjustment shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report on its findings on zoning ordinance provisions which were the subject of variance requests and its recommendations for zoning ordinance amendment or revision, ifany. The board of adjustment shall send copies of the report and resolution to the governing body and planning board. L, 1985, c, 516, s. 16. 40:55D-70.2. Board of adjustment, determination; reasons 6. If, in the case of an appeal made pursuant to subsection a. of section 57 of P.L.1975, c.291 (C.40:55D-70), the board of adjustment determines there is an error in any order, requirement, decision or refusal made by the administrative officer pursuant to a report submitted by the historic preservation coninission or planning board in accordance with section 25 of P.L.1985, c.216 (C.40:5SD-111), the board of adjustment shall include the reasons for its determination in the findings of its

eservation coninission or planning board in accordance with section 25 of P.L.1985, c.216 (C.40:5SD-111), the board of adjustment shall include the reasons for its determination in the findings of its decision thereon, L.1991,¢.199,s.6. hitp:/lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=30858234&Depth=2&TD=WRAP.,. 9/28/2011