N.J. Admin. Code § 19:31C-3.21

Current through Register Vol. 56, No. 19, October 7, 2024

Section 19:31C-3.21 - Variances and exceptions

(a) The following concern bulk and area-type variances:

1. In connection with subdivision and site plan approval, the Planning Board shall have the authority to grant bulk and area-type variances from the requirements contained in this subchapter or applicable LRHL redevelopment plan, upon the satisfaction of either of the following criteria:

i. By reason of the exceptional narrowness, shallowness, or shape of the property; exceptional topographic conditions or physical features uniquely affecting the property; or an extraordinary and exceptional situation uniquely affecting the property or structures lawfully existing thereon, strict application would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer; or

ii. A determination that the purposes of the Reuse Plan and this subchapter would be advanced by a deviation from the bulk and area requirements of this subchapter and the benefits of the deviation would substantially outweigh any detriment.

2. No bulk and area-type variance may be granted without a determination that the variance can be granted without substantial detriment to the public good and that the granting of the variance will not substantially impair the intent and purpose of the Reuse Plan or this subchapter.

3. Where bulk and area-type variances are requested or identified by the Authority as being required during mandatory conceptual review, the Authority may include in its written report of the results of its mandatory conceptual review a statement with the Authority's position as to whether the variances can be granted without substantially impairing the intent and purpose of the Reuse Plan or this subchapter, or a statement as to why the Authority has determined that granting the variances would substantially impair the intent and purpose of the Reuse Plan or this subchapter.

4. Where the need or a request for a bulk and area-type variance is identified following the completion of the Authority's mandatory conceptual review, the planning board, prior to the completion of the public hearing on the application, shall so inform the Authority and shall afford the Authority the opportunity to provide for the record the Authority's statement pursuant to (a)3 above. The Authority's statement may be provided either as a written addendum to its report of the results of its mandatory conceptual review or by oral testimony, at the Authority's discretion.

(b) The following concern use-type variances, other than density variances:

1. The Authority shall have sole and exclusive jurisdiction to grant, for special reasons shown, a variance from the requirements of the Reuse Plan or this subchapter to permit:

i. A use or principal structure in a development district restricted against such use or principal structure;

ii. A continuation or an expansion of a nonconforming use;

iii. Deviation from a specification or standard pursuant to this subchapter pertaining solely to a conditional use;

iv. An increase in the permitted floor area ratio in a development district as established by this subchapter; and

v. A height of a principal structure which exceeds by 10 feet or 10 percent the maximum height permitted in a development district for a principal structure.

2. In lieu of granting any use-type variance, the Authority, in its discretion, may require the adoption of a Reuse Plan amendment pursuant to 19:31C-3.2 7(c) or an amendment to this subchapter, or both. The decision of the FMERA Board to require a Reuse Plan amendment or an amendment to this subchapter shall be memorialized in a resolution adopted by the FMERA Board.

3. An application for a use-type variance may be included as part of an application for mandatory conceptual review, or may be bifurcated from the development application to which it pertains and submitted separately and in advance of such development application. If not submitted together with an application for mandatory conceptual review, an application for a use-type variance shall be submitted on a properly completed and signed Authority application form, which shall request the following information:

i. The applicant's name and address;

ii. Identification and the location of the property that is the subject of the application, by municipal block and lot number if available, or by the Authority parcel designation;

iii. Identification of the particular rule from which the variance is sought;

iv. Provision of a statement of why the variance is sought and of the special reasons that warrant the granting thereof;

v. A description the consequences to the applicant and project if the variance is denied;

vi. Inclusion of site plans, reports, or other data that demonstrate the extent of the relief being sought;

vii. If the applicant is not the property owner, the property owner's name and address as well as the property owner's authorization for the application;

viii. A chronological list of all prior Authority actions taken or approvals granted, and land use approvals granted by the host municipality, if any, for the subject property;

ix. Inclusion of such other such information as may be deemed necessary from a specific applicant by the Authority; and

x. Inclusion of payment of the use-type variance application fee pursuant to 19:31C-3.2 8(b)1 and the posting of the use-type variance escrow deposit pursuant to 19:31C-3.2 8(b)2.

4. In the granting of any use-type variance, the Authority 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 this subchapter; reduce or minimize any potentially injurious effect of such variance upon other property in or abutting the Fort Monmouth Project Area; carry out the general purpose and intent of this subchapter and the Reuse Plan; and promote the planning principles of the Reuse Plan.

5. If, prior to or in conjunction with an application for mandatory conceptual review, an applicant requests a use-type variance, or if, during the course of mandatory conceptual review, the Authority determines that a use-type variance or an amendment to the Reuse Plan is required, the planning board shall not have jurisdiction over the application unless and until the applicant obtains approval from the Authority for the required use-type variance, or until an amendment to the Reuse Plan or this subchapter is adopted.

6. A public hearing on an application requesting or requiring a use-type variance shall be held in accordance with 19:31C-3.2 6.

7. Use-type variances may be granted where the applicant demonstrates to the satisfaction of the Authority that special reasons exist for the granting of such variance, that the granting of the requested variance will not substantially impair the intent and purpose of the Reuse Plan and this subchapter, and that the variance can be granted without substantial detriment to the public good. In determining whether to grant a request for a use-type variance, the Authority must determine, based upon the evidence presented by the applicant and the Authority staff's recommendation, that:

i. Special reasons exist for the granting of the variance requested, including that the granting of the requested variance at the specified location will specifically and materially advance the planning objectives of the Reuse Plan and this subchapter;

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; and

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 the Reuse Plan or this subchapter; and

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

8. All use-type variances granted by the Authority shall require the affirmative vote of seven members of the FMERA Board, and shall be memorialized in a resolution adopted by the FMERA Board.

9. The approval of a use-type variance shall become null and void five years after the date on which the Authority adopts the resolution approving the variance, unless within such period:

i. Site plan and subdivision approval for the project is obtained from the planning board; or

ii. A certificate of occupancy pursuant to 19:31C-3.1 9(e) and a certificate of completion pursuant to 19:31C-3.2 4(f) are obtained for the project, and the use is commenced.

(c) The following concern requirements applicable to use-type variance for increased density:

1. Requests for a use-type variance seeking an increase in the permitted density as established by this subchapter shall first be heard and decided by the zoning board of the host municipality where the property in question is located, pursuant to 52:27I-34.e(2). If the zoning board hearing such variance request does not vote in favor of the variance request, the Authority may not grant such a variance.

2. If the zoning board approves a request for a variance to increase density, the Authority may proceed to review and consider the application pursuant to the procedures and standards set forth in 19:31C-3.2 1(b) except as otherwise provided in this section.

3. Applications to the Authority that include a request for a density variance shall include the memorializing resolution and the record of the zoning board's approval of the variance.

4. Except where the zoning board has denied the density variance, the Authority may approve, conditionally approve, or deny such an application. In lieu of granting a use-type variance increasing density, the Authority, in its discretion, may require the adoption of a Reuse Plan amendment pursuant to 19:31C-3.2 7(c) or an amendment to this subchapter, or both.

5. In deciding the request for density variance, the Authority may rely on the record of the public hearings conducted by the zoning board. Nothing in this section shall preclude the Authority from requiring a separate public hearing in accordance with 19:31C-3.2 6 on an application for a density variance, if the Authority, in its sole discretion, determines that such a hearing is necessary or desirable.

6. The Authority shall approve or deny the application for the density variance within 120 days of a complete submission, unless the applicant agrees to extend the time.

(d) The following concern design exceptions:

1. The respective planning board, when acting upon site plan and subdivision applications, shall have the power to grant exceptions from the requirements listed in 19:31C-3.1 0 through 3.12 as may be reasonable and within the general purpose and intent of this subchapter or the Reuse Plan if:

i. The literal enforcement of one or more of the rules in this subchapter is impractical; or

ii. The literal enforcement of one or more of the rules in this subchapter will exact undue hardship because of peculiar conditions pertaining to the land in questions.

N.J. Admin. Code § 19:31C-3.21