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 piece 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; (2) 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, c.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 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: (1) 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, c.291 (C.40:55D-67) pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), (5) an increase in the permitted density as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), except as applied to the required lot area for a lot or 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 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 relief 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.
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, if any. The board of adjustment shall send copies of the report and resolution to the governing body and planning board.
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 commission or planning board in accordance with section 25 of P.L.1985, c.216 (C.40:55D-111), the board of adjustment shall include the reasons for its determination in the findings of its decision thereon.
Notes of Decisions
Borough of Saddle River v. 66 East Allendale, LLC (070525), 77 A.3d 1161 (N.J. 2013).
· cites it 12× “See N.J.S.A. 40:55D-70 (recognizing board of adjustment’s authority to hear Borough’s primary objectives is to preserve the environment, which is reflected in municipal zoning ordinances.”
Carol Jacoby v. Zoning Bd. of Adjustment of The, 124 A.3d 694 (N.J. Super. Ct. App. Div. 2015).
· cites it 11× “Regarding bulk variances, N.J.S.A. 40:55D-70(c) states that the zoning board has the power: (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features…”
Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of the Twp. of Franklin, 187 A.3d 142 (N.J. 2018).
· cites it 6× “" To justify a (d)(1) variance, an applicant must fit within at least one of the three "special reasons" categories set forth in N.J.S.A. 40:55D-70(d) : (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where…”
Harz v. Borough of Spring Lake, 191 A.3d 547 (N.J. 2018).
· cites it 6× “1 See **320 N.J.S.A. 40:55D-70 ; -72(a). In her lawsuit, she contends that the denial of that statutory right contravened a substantive right protected by the Civil Rights Act, entitling her to relief.”
Lapid-Laurel, L.L.C. v. Zoning Bd. Of Adjustment Of The Twp. Of Scotch Plains, 284 F.3d 442 (3rd Cir. 2002).
· cites it 6× “Second, Lapid requested three non-use variances pursuant to N.J.S.A. 40:55D-70(c). These sought permission to: (1) construct a parking lot in front of the building; (2) build a fence in excess of four feet in height; and (3) place a freestanding sign in front of the building.”
Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Harrington Park, 90 F. Supp. 2d 557 (D.N.J. 2000).
· cites it 8× “In addition to granting what is called a use variance, N.J.S.A. 40:55D-70 gives the board of adjustment the power to grant what is called a bulk or dimensional variance: Where: (a) by reason of exceptional narrowness, shallowness or shape of a spe-cifie piece of property, or (b)…”
Dunbar Homes, Inc. v. the Zoning Bd. of Adjustment, 154 A.3d 710 (N.J. Super. Ct. App. Div. 2017).
· cites it 2× “What is at stake here is whether the (d)(3) variance still applies or whether plaintiff must satisfy the conditions for a (d)(1) variance, N.J.S.A. 40:55D-70(d)(1), as a result of a change in the ordinance that eliminated garden apartments as a conditional use in that zone.”
New Jersey Transit Corp. v. Mary Franco, 148 A.3d 424 (N.J. Super. Ct. App. Div. 2016).
“There, our Supreme Court considered whether a developer who proposed to place a driveway on one lot to service a hotel on the adjacent lot was "required to obtain variances under the Municipal Land 8 A-3802-12T4 Use Law (MLUL), N.”
T-Mobile Ne. LLC v. Borough of Leonia Zoning Bd. of Adjustment, 942 F. Supp. 2d 474 (D.N.J. 2013).
· cites it 4× “40:55D-70(d), 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 relief can be granted without substantial detriment to the public…”
— N.J. Stat. § 40:55D-70(3) — 1 case
Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Harrington Park, 90 F. Supp. 2d 557 (D.N.J. 2000).
“In addition to granting what is called a use variance, N.J.S.A. 40:55D-70 gives the board of adjustment the power to grant what is called a bulk or dimensional variance: Where: (a) by reason of exceptional narrowness, shallowness or shape of a spe-cifie piece of property, or (b)…”
— N.J. Stat. § 40:55D-70(D)(1) — 1 case
— N.J. Stat. § 40:55D-70(a) — 19 cases
Harz v. Borough of Spring Lake, 191 A.3d 547 (N.J. 2018).
“1 See **320 N.J.S.A. 40:55D-70 ; -72(a). In her lawsuit, she contends that the denial of that statutory right contravened a substantive right protected by the Civil Rights Act, entitling her to relief.”
— N.J. Stat. § 40:55D-70(b) — 13 cases
— N.J. Stat. § 40:55D-70(c) — 47 cases
Lapid-Laurel, L.L.C. v. Zoning Bd. Of Adjustment Of The Twp. Of Scotch Plains, 284 F.3d 442 (3rd Cir. 2002).
“Second, Lapid requested three non-use variances pursuant to N.J.S.A. 40:55D-70(c). These sought permission to: (1) construct a parking lot in front of the building; (2) build a fence in excess of four feet in height; and (3) place a freestanding sign in front of the building.”
Carol Jacoby v. Zoning Bd. of Adjustment of The, 124 A.3d 694 (N.J. Super. Ct. App. Div. 2015).
“Regarding bulk variances, N.J.S.A. 40:55D-70(c) states that the zoning board has the power: (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features…”
Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Harrington Park, 90 F. Supp. 2d 557 (D.N.J. 2000).
“In addition to granting what is called a use variance, N.J.S.A. 40:55D-70 gives the board of adjustment the power to grant what is called a bulk or dimensional variance: Where: (a) by reason of exceptional narrowness, shallowness or shape of a spe-cifie piece of property, or (b)…”
— N.J. Stat. § 40:55D-70(c)(1) — 45 cases
Carol Jacoby v. Zoning Bd. of Adjustment of The, 124 A.3d 694 (N.J. Super. Ct. App. Div. 2015).
“Regarding bulk variances, N.J.S.A. 40:55D-70(c) states that the zoning board has the power: (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features…”
— N.J. Stat. § 40:55D-70(c)(1)(c) — 2 cases
— N.J. Stat. § 40:55D-70(c)(2) — 43 cases
Carol Jacoby v. Zoning Bd. of Adjustment of The, 124 A.3d 694 (N.J. Super. Ct. App. Div. 2015).
“Regarding bulk variances, N.J.S.A. 40:55D-70(c) states that the zoning board has the power: (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features…”
— N.J. Stat. § 40:55D-70(c)(l) — 2 cases
— N.J. Stat. § 40:55D-70(d) — 89 cases
Lapid-Laurel, L.L.C. v. Zoning Bd. Of Adjustment Of The Twp. Of Scotch Plains, 284 F.3d 442 (3rd Cir. 2002).
“Second, Lapid requested three non-use variances pursuant to N.J.S.A. 40:55D-70(c). These sought permission to: (1) construct a parking lot in front of the building; (2) build a fence in excess of four feet in height; and (3) place a freestanding sign in front of the building.”
Carol Jacoby v. Zoning Bd. of Adjustment of The, 124 A.3d 694 (N.J. Super. Ct. App. Div. 2015).
“Regarding bulk variances, N.J.S.A. 40:55D-70(c) states that the zoning board has the power: (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features…”
Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of the Twp. of Franklin, 187 A.3d 142 (N.J. 2018).
“" To justify a (d)(1) variance, an applicant must fit within at least one of the three "special reasons" categories set forth in N.J.S.A. 40:55D-70(d) : (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where…”
— N.J. Stat. § 40:55D-70(d)(1) — 44 cases
Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of the Twp. of Franklin, 187 A.3d 142 (N.J. 2018).
“" To justify a (d)(1) variance, an applicant must fit within at least one of the three "special reasons" categories set forth in N.J.S.A. 40:55D-70(d) : (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where…”
New Jersey Transit Corp. v. Mary Franco, 148 A.3d 424 (N.J. Super. Ct. App. Div. 2016).
“There, our Supreme Court considered whether a developer who proposed to place a driveway on one lot to service a hotel on the adjacent lot was "required to obtain variances under the Municipal Land 8 A-3802-12T4 Use Law (MLUL), N.”
Dunbar Homes, Inc. v. the Zoning Bd. of Adjustment, 154 A.3d 710 (N.J. Super. Ct. App. Div. 2017).
“What is at stake here is whether the (d)(3) variance still applies or whether plaintiff must satisfy the conditions for a (d)(1) variance, N.J.S.A. 40:55D-70(d)(1), as a result of a change in the ordinance that eliminated garden apartments as a conditional use in that zone.”
— N.J. Stat. § 40:55D-70(d)(2) — 10 cases
— N.J. Stat. § 40:55D-70(d)(3) — 11 cases
Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of the Twp. of Franklin, 187 A.3d 142 (N.J. 2018).
“" To justify a (d)(1) variance, an applicant must fit within at least one of the three "special reasons" categories set forth in N.J.S.A. 40:55D-70(d) : (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where…”
Dunbar Homes, Inc. v. the Zoning Bd. of Adjustment, 154 A.3d 710 (N.J. Super. Ct. App. Div. 2017).
“What is at stake here is whether the (d)(3) variance still applies or whether plaintiff must satisfy the conditions for a (d)(1) variance, N.J.S.A. 40:55D-70(d)(1), as a result of a change in the ordinance that eliminated garden apartments as a conditional use in that zone.”
— N.J. Stat. § 40:55D-70(d)(4) — 2 cases
— N.J. Stat. § 40:55D-70(d)(5) — 2 cases
— N.J. Stat. § 40:55D-70(d)(6) — 14 cases
Carol Jacoby v. Zoning Bd. of Adjustment of The, 124 A.3d 694 (N.J. Super. Ct. App. Div. 2015).
“Regarding bulk variances, N.J.S.A. 40:55D-70(c) states that the zoning board has the power: (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features…”
Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Harrington Park, 90 F. Supp. 2d 557 (D.N.J. 2000).
“In addition to granting what is called a use variance, N.J.S.A. 40:55D-70 gives the board of adjustment the power to grant what is called a bulk or dimensional variance: Where: (a) by reason of exceptional narrowness, shallowness or shape of a spe-cifie piece of property, or (b)…”
— N.J. Stat. § 40:55D-70(e) — 1 case
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