N.J. Admin. Code § 19:4-4.14

Current through Register Vol. 56, No. 11, June 3, 2024

Section 19:4-4.14 - Variances

(a) A variance from a particular regulation may be granted in accordance with these regulations.

(b) An application for a variance made to the NJMC shall be filed with the NJMC staff, and shall accompany a zoning certificate application prepared in accordance with 19:4-4.3.

(c) An application for a variance shall contain the following:

1. A complete application form, signed by the applicant and the property owner, containing the following major components;

i. Applicant information;

ii. Property location and ownership information;

iii. The particular regulation from which the variance is sought;

iv. A statement of the reasons why the variance is sought; and

v. Resulting hardships if the variance is denied;

2. The required fee, in accordance with N.J.A.C. 19:4-11;

3. A statement of the characteristics of the subject property that prevent compliance with the regulations;

4. Any site plans, reports, or other data that demonstrate the extent of the relief being sought; and

5. Other such information as may be deemed necessary from a specific applicant by the NJMC.

(d) A public hearing on the application shall be held in accordance with 19:4-4.1 7.

(e) A variance shall not be granted unless specific written findings of fact directly based upon the particular evidence presented are made that support conclusions that:

1. Concerning bulk variances:

i. The variance requested arises from such condition that is unique to the property in question, is not ordinarily found in the same zone, and is not created by any action of the property owner or the applicant;

ii. The granting of the variance will not adversely affect the rights of neighboring property owners or residents;

iii. The strict application of the regulations will result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the property owner;

iv. The variance will not result in substantial detriment to the public good and will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare;

v. The variance will not have a substantial adverse environmental impact;

vi. The variance represents the minimum deviation from the regulations that will afford relief; and

vii. Granting the variance will not substantially impair the intent and purpose of these regulations; and

2. Concerning use variances:

i. The strict application of these regulations will result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the property owner;

ii. The variance will not result in substantial detriment to the public good and will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare;

iii. Adequate infrastructure, including storm and sanitary sewers, utilities, and access roads, will be provided and shall be so designed to prevent and/or minimize negative impacts upon the existing infrastructure. In addition, the proposed use will not decrease the ability of said infrastructure to perform in a safe and efficient manner;

iv. The variance will not have a substantial adverse environmental impact;

v. The variance will not substantially impair the intent and purpose of these regulations; and

vi. The variance at the specified location will contribute to and promote the intent of the NJMC Master Plan.

(f) In determining whether the evidence supports the conclusions required by (e) above, the Board of Commissioners shall also consider the extent to which the evidence demonstrates that:

1. Concerning bulk variances:

i. The physical surroundings, shape or topographical condition of the subject property would result in a practical difficulty or undue hardship upon the property owner or applicant, as distinguished from a mere inconvenience, if the provisions of these regulations were literally enforced;

ii. The request for a variance is not based exclusively upon desire of the property owner or applicant to make more money from the property;

iii. The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood of the subject property; and

iv. The variance will not impair an adequate supply of light or air to adjacent property, substantially increase congestion in public streets, increase the danger of fire, endanger the public safety, or substantially diminish or impair property values within the neighborhood; and

2. Concerning use variances:

i. Conformance with the regulations would result in a practical difficulty or undue hardship upon the property owner or applicant, as distinguished from a mere inconvenience;

ii. The request for a variance is not based exclusively upon the desire of the property owner or applicant to make more money from the property;

iii. The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood of the subject property;

v. The applicant has demonstrated that the proposed use will further the purposes of the NJMC Master Plan; and

vi. The applicant has demonstrated that the proposed use is compatible with and complementary to the neighborhood.

(g) Upon the close of the public record and within one week after the receipt of transcripts, the NJMC staff shall transmit a copy of the record of the matter, consisting of the application, transcripts, and exhibits, to the Board of Commissioners for review.

(h) Within eight weeks of the close of the public record, a comprehensive report containing findings, conclusions, and/or recommendations regarding the variance application shall be prepared by the NJMC staff and signed by the Executive Director and the Director of Land Use Management.

(i) The NJMC staff shall transmit a copy of the report to the applicant via certified mail and post a copy on the NJMC website. Any appeal of the recommendation shall be made in accordance with 19:4-4.1 9.

(j) After the appeal period, the NJMC staff shall transmit a copy of the report to the Board of Commissioners for review. The matter shall be placed on the agenda of the next available scheduled meeting of the Board of Commissioners in accordance with statutory notice requirements.

(k) The NJMC staff shall notify the applicant, via certified mail, of the date of the meeting of the Board of Commissioners at which the variance request will be decided.

(l) The Board of Commissioners shall decide, by a concurring vote of a majority of its members, to grant or deny the variance requested, based upon the record of the matter.

1. In the granting of any variance, the decision may impose such conditions, safeguards, limitations and restrictions upon the premises benefited by the variance as may be necessary to: comply with other standards set forth in these regulations; reduce or minimize any potentially injurious effect of such variance upon other property in the neighborhood; carry out the general purpose and intent of these regulations; and promote the intent and purpose of the NJMC Master Plan.

2. Failure to comply with any of the conditions or restrictions placed on a variance shall constitute a violation of these regulations.

(m) The decision of the Board of Commissioners shall be memorialized by a formal written resolution adopted at the meeting at which the variance is decided.

(n) A copy of the decision of the Board of Commissioners shall be transmitted to the applicant by the NJMC via certified mail, and the NJMC shall advise the applicant of its right to appeal said decision as a final action of the Board of Commissioners in accordance with 19:4-4.1 9(e).

(o) No person shall contact or attempt to contact any member of the Board of Commissioners or the NJMC staff regarding a variance application to discuss an impending decision on the subject application after the close of the public record.

(p) The approval of a variance shall become null and void five years after the date on which the approval is issued, unless within such period:

1. A zoning certificate is obtained; or

2. Occupancy certification is obtained and the use commenced.

(q) No extensions of approval shall be granted.

N.J. Admin. Code § 19:4-4.14

Amended by R.2005 d.210, effective 7/5/2005.
See: 36 N.J.R. 5659(a), 37 N.J.R. 427(a), 37 N.J.R. 2555(a).
Rewrote the section.
Amended by R.2011 d.118, effective 4/18/2011.
See: 42 N.J.R. 2938(a), 43 N.J.R. 1044(a).
In (i), inserted "and post a copy on the NJMC website" and "shall be made", and substituted "Any appeal of" for "The applicant may appeal".