2017 Meeting Dates

  • January 5, 2017
  • February 2, 2017
  • March 2, 2017
  • April 6, 2017
  • May 4, 2017
  • June 1, 2017
  • July 6, 2017
  • August 3, 2017
  • September 7, 2017
  • October 5, 2017
  • November 2, 2017
  • December 7, 2017

All meetings start at 7:00 PM at the Belleville Town Hall Council Chambers unless otherwise noted.

Zoning Board Members

  • A.J. DEL GUERCIO, CHAIRMAN
  • W. VILLANO, VICE CHAIRMAN
  • J. CARUSO
  • R. GIORDANO
  • V. MAFFUCCI
  • M. SHELDON
  • G. SMITH

 

  • C. KOSSUP, 1st Alt.

 

  • F. DELORENZO, JR., CODE/ZONING OFFICER
  • L. RAGO, BOARD ATTORNEY
  • G. CICCARELLI, SECRETARY
  • TOM HERITS, TOWN ENGINEER/PLANNER
  • M. QUICK, SHORTHAND REPORTER

IMPORTANT LINKS

The Belleville Zoning Board of Adjustment consists of 7 regular members and 2 alternate members.   These members are residents of Belleville who voluntarily serve on the Board after being appointed by the Town Council in this capacity.    The current members of the Zoning Board are listed below in the left margin of this page.

Roles of the Zoning Board of Adjustment
&
the Zoning Officer

The New Jersey Planner, May/June 2012

Written by Dennis M. Galvin, Esq.

This article seeks to explain the roles of the Zoning Board of Adjustment and the Municipal Zoning Officer, and the limits of their authority. It is essential that each respects the diligent efforts of the other.    Click on a particular bullet topic of interest below to expand it.

THE ZONING BOARD OF ADJUSTMENT

The Zoning Board of Adjustment is an independent, quasi-judicial body, whose jurisdiction is found in N.J.S.A. 40:55D-70. The Zoning Board is exclusively responsible for the granting of all six types of “d” variances, including use variances. The Zoning Board also has the authority to hear bulk variances, also known as “c” variances, on applications that do not require a site plan or subdivision approval. Any improvement to a single family home that requires a variance must be heard by the Zoning Board of Adjustment.

In addition to granting variances, the Zoning Board is the only agency that is permitted to hear appeals of rulings by the Zoning Officer, as well as interpretations of the Master Plan and the Zoning Ordinance. N.J.S.A. 40:55D-70(a) and (b) respectively. With very few exceptions, the Zoning Board sits as if it were a Court. The best exception that comes to mind is when the Board does its annual report; that function is quasi-legislative.

THE ZONING OFFICER

The Zoning Officer, also referred to as the code enforcer, is the enforcement arm of zoning, making it the police department to the Board’s Court. Before an applicant can undertake a project, they are required to make a request for a zoning permit. The Zoning Officer is responsible for making the initial determination of whether the proposal conforms to the zoning ordinance. (Cox and Koenig, p. 16, Section 1-4.3). When the Zoning Officer reviews a request for a zoning permit, they must identify any and all variances, both existing and proposed. O’Donnell v. Koch, 197 N.J.Super. 134 (App. Div. 1984). The applicant, however, may make a direct request for relief to the Zoning Board, without first receiving a denial from the Zoning Officer. When the applicant does so, the Board, just like the Zoning Officer, is to consider any and all variances or permits that may be required, even those not raised by the applicant or the Zoning Officer. Id.

It is important to remember that the burden of proof is always on the applicant. When the Zoning Officer can confirm that the request is consistent with the Zoning Ordinance, the permit should be granted. When it is inconsistent, it should be denied.

The gray areas are easy for the Zoning Official. All Zoning Officers are schooled in the Mantra “when in doubt, deny.” The idea is to leave uncertain matters to the Zoning Board, a public body made up of citizens making a decision in a public forum, which then insulates the Zoning Officer from criticism and questions of favoritism. (Cox and Koenig, p. 16, section 1-4.3). The Zoning Officer’s decisions may only be appealed to the Zoning Board. N.J.S.A. 40:55D-72(a). Once the Zoning Board rules, the Zoning Officer must respect and carry out the decision of the Board. Centennial Land & Dev. Co. v. Tp. of Medford, 165 N.J.Super. 220 (Law Div. 1979).

The same is true of requests for interpretations. For instance, when a Zoning Ordinance is unclear on a point, it sometimes happens that a Zoning Officer will establish their own policy. For instance, in a situation where the Ordinance does not define delis and restaurants, the Zoning Officer might choose to apply a rule, wherein restaurants have seating and delis do not. This view may work well for years, but when challenged, it is the determination of the Board that controls. In other words, once the Board has ruled, the Zoning Officer must abide by the Board’s interpretation. Colts Run Civic v. Colts Neck Tp., 315 N.J.Super. 240, (Law Div. 1998).

The supremacy of the Zoning Board in the area of interpretations was confirmed in DePetro v. Tp. of Wayne Planning Bd., 367 N.J.Super. 161, 169 (App.Div.), certif., den. 181 N.J. 544 (2004), where the Court found that an interpretation of the Ordinance that goes to the issue of jurisdiction must be heard by the Zoning Board. So although the Municipal Land Use Law favors one stop shopping, this is a significant exception and reflects the important role of the Zoning Board as a quasi-judicial body.

While the Zoning Board and the Zoning Officer have the combined goal of protecting the integrity of the Master Plan and the Zoning Ordinance, the Board, unlike the Zoning Officer, is not an enforcing agency. The Board can only undertake matters when it has obtained jurisdiction, just like a Court. (Cox and Koenig, p. 107, section 4-4.3). It would be unfair for a Zoning Board Member to participate in enforcement in some way, and then proceed to sit and review the validity of such a claim. This would amount to serving as both prosecutor and judge; this violates the American notion of judicial impartiality and fair play. You are not allowed to be Judge Dredd.

Moreover, while the Zoning Board is critical to the process and enjoys wide authority in the interpretation of the Ordinance, the Board does not participate in the creation of the Master Plan, which is exclusively within the responsibility of the Planning Board. The Zoning Ordinance is enacted by the governing body after review and comment by the Planning Board. The Zoning Board affects the process by preparing its end of the year report and by making recommendations at that time. This report is submitted to the Planning Board and the Governing Body for their information. Zoning Boards have a unique insight into what works in local zoning, and the Planning Board and Governing body would be wise to consider the Board’s annual report; but there is nothing in the law which requires them to take any action after receipt of the report.

CERTIFICATION OF NON-CONFORMING USES

For one year following the implementation of a Zone change, the Zoning Officer, under the Municipal Land Use Law (MLUL), has the right to issue a Certificate of Nonconforming Use, provided the use is in fact a “valid pre-existing non-conforming use”. N.J.S. 40:55D-68. After that initial 12-month period, only the Zoning Board can rule on the validity of a pre-existing, nonconforming use. Stafford v. Stafford Zoning Bd., 154 N.J. 62, 69 (1998). An applicant must provide proof that the use either pre-existed all zoning, or that the existing use was a permitted use at some point, since the implementation of zoning. Berkeley Square v. Trenton Zoning Board of Adjustment, 410 N.J.Super. 255, 269 (App.Div. 2009), certif.. den. 202 N.J. 347 (2010). Or in the alternative, the applicant must be able to show that a use variance was granted at some point.

ENFORCEMENT

The Board expects that an applicant will comply with his or her testimony rendered at the time of the hearing, and will completely comply with the conditions of approval. Enforcement issues come about in two contexts. The first is when a Board Member observes that an applicant seems to be ignoring its promises to the Board, the conditions of an approval. My recommendation in that instance is to have the Chairman ask the Zoning Officer to make sure that the conditions of approval are being met, as the Zoning Officer is responsible for ensuring compliance with the resolution of approval. When an applicant cannot, or does not comply, the Zoning Officer must order the applicant to return to the Board to explain the noncompliance, or to request an amended relief. If the applicant refuses, the Zoning Officer should issue a notice of violation.

Enforcement issues also arise when Board Members receive inquiries from the public. In those instances, it is expected that the complaining member of the public be directed to contact the Zoning Officer directly. Although Board Members may want to help the public by getting involved, they are infringing on the role of the Zoning officer. The act of listening to members of the community is not in and of itself a problem; but once you (as a Board Member) comment or give an opinion, you have been compromised, and you must recuse yourself from hearing the matter, should it come before the Board. (Cox and Koenig, p. 109).

WORKING TOGETHER

To gain the respect of the Zoning Board, a Zoning Officer needs to identify all variance relief needed on a given property, when a referral is made; vigorously enforce conditions of approval; and reflect a good working knowledge of the Zoning Ordinance. Zoning Officers should not be concerned with their win-loss record before the Board. As the Zoning Officer should be cautious and deny when doubt exists, the fact that the Board reverses the Zoning Officer is not like correcting a mistake. It really amounts to shifting the decision-making to a public body, which is a good thing.

Board Members should always be respectful of a Zoning Officer’s decision to deny, even as they decide to reverse that decision. Denials provide the opportunity to make sure the right outcome occurs. When a Zoning Officer becomes overly confident and grants improvident permits, there is very little a Board can do; because like a Court, the Board can only act when it has jurisdiction. Occasionally, a neighboring property owner might appeal that decision to the Board, but that is rare. Therefore, the Public is much better served when the Zoning Officer sends close calls to the Board; and treating the Zoning Officer with respect encourages this outcome

FREQUENTLY ASKED QUESTIONS (FAQ'S)

Click on a particular bullet topic of interest below to expand it.

WHAT IS A "C" VARIANCE?

THE “C” VARIANCE UNDER NJ ZONING LAW

Written by New Jersey Zoning Law Attorney Fredrick P. Niemann, Esq. (Read more about Mr. Niemann here)

There are two different approaches you can take when applying for and receiving a “C” variance from your municipal zoning board. The first involves showing you will suffer a “hardship” if you are not granted the variance. This hardship must relate strictly to the physical or topographic features of the property and cannot relate to any personal or financial hardship that you will suffer. Hardship as it relates to a piece of property can be shown from its:

  1. Narrowness, shallowness, or irregular shape; or
  2. An exceptional topographic condition; or
  3. Other unique conditions or physical features affecting the property

 

A good example to illustrate when a “C” variance is needed is when an applicant cannot satisfy the setback requirements based on the fact that the lot he or she is seeking to build upon is triangular in shape, therefore no matter where he or she places the home, it will be closer to his or her property lot line than permitted by the municipality. In this example, as a property owner you can apply for a c (1) variance based on the irregular shape of the property.

One additional criteria must be shown for a c (1) variance to be granted. This criteria is known as the “negative criteria”. The negative criteria” involves showing first, that the variance can be granted without causing substantial detriment to the public good and second, that the granting of a variance will not substantially impair the intent and purpose of the municipal zoning plan and ordinance. These two requirements must be shown not just for c (1) variance, but for all C and D variances.

The other legal approach to obtaining a variance when your land does not qualify for a c (1) variance is to apply for what is known as a c (2) variance, also known as a “flexible C variance”. This application involves showing the zoning board that granting the variance will benefit the community by improving local zoning and planning. In order to show this, one must demonstrate that:

  1. The variance is needed for a specific piece of property;
  2. The proposed variance advances the purposes of the Municipal Land Use Law; and
  3. The benefits of the deviation from the local zoning ordinance resulting from granting the variance would substantially outweigh any detriment.

 

The Municipal Land Use Law lists 15 separate purposes that relate generally to the public health, safety, establishment of appropriate population densities and desirable visual environments, etc. To satisfy the requirements of a c (2) variance, one must prove by clear and persuasive evidence that the need for the variance falls within one of the specific purposes listed in the municipal land use law.

An example of a flexible C variance is when a small setback variance of several feet in a back yard is needed to allow a house to be built in scale and harmony with the character of the neighborhood. Here the application relates to a specific house, maintains an appropriate population density (a purpose of the Municipal Land Use Law), and fits into the character of the community. These benefits might (if clearly proven) substantially outweigh any detriment that a small setback variance could cause. The negative criteria would be satisfied if the variance is shown not to cause substantial detriment to the public good and does not substantially impair the intent and purpose of the municipal zoning plan.

In order to be approved, all C variances require a majority vote by the local Zoning Board of Adjustment. Obtaining a majority vote and thus your C variance can be complex. Planning Boards and Zoning Boards will demand a showing of specific evidence pertaining to your property. If you are unfamiliar with what they are looking for, you are likely to have your variance application denied. An experienced New Jersey zoning and land use attorney will know what to show the Board in order to put you in the best possible position to obtain your C variance.

WHAT IS A "D" USE VARIANCE?

THE “D” (USE) VARIANCE UNDER
NEW JERSEY ZONING LAW

Written by New Jersey Zoning Law Attorney Fredrick P. Niemann, Esq. (Read more about Mr. Niemann here)

The other major variance besides a “C” variance is the “D” variance, also known as a “use” variance. “D variances” are really complex and much more difficult to obtain than a “C variance”. There are six different types of use variances.

  1. D(1) variance – An applicant seeks to place a use or principal structure on their property where such a use or principal structure is prohibited or restricted under the local land use ordinance.
  2. D(2) variance – An applicant seeks to expand (in size or intensity) his or her pre-existing, nonconforming use or structure.
  3. D(3) variance – An applicant seeks a conditional use variance, meaning that under certain conditions a use or type of building is permitted provided all of the specified conditions listed in the ordinance are met. If one or more of the conditions is not met, then a conditional use variance is required.
  4. D(4) variance – An applicant seeks a variance that allows an increase in the maximum permitted square footage of a structure. This term is often referred to as the “floor area ratio of the building” (FAR).
  5. D(5) variance – An applicant seeks a variance allowing an increase in the permitted density of the property. An example is a 2 family home in a single family district.
  6. D(6) variance – An applicant seeks a variance to allow a structure on a piece of property that exceeds the maximum height limit by 10 feet or 10%.

 

When dealing with an application for a D variance, the Zoning Board wants to know about “special reasons”. By showing special reasons (a term under New Jersey Law), an applicant is satisfying the positive criteria required for a D variance.  Special reasons means “the property is particularly suitable for the proposed use” thus serving the general welfare.  Don’t forget however, that the negative criteria must also be addressed, meaning an applicant seeking a D variance, in addition to showing special reasons, must also show that the variance can be granted without causing substantial detriment to the public good and won’t substantially impair the intent and purpose of the municipal zoning ordinance and municipal master plan.

For “D variances”, special reasons can be shown in three ways.

First, the use is “inherently beneficial” to the public good. An inherently beneficial use is generally a use that promotes the general welfare of the community. They are considered to be of universal value needed by the community. Some examples are hospitals, schools, child-care centers, etc. Uses that may be attractive because they provide jobs, services, products, and recreation are usually not deemed inherently beneficial.

If the D variance application is for a use that is not inherently beneficial, there are two remaining ways to show special reasons to satisfy the positive criteria.  Showing a site is particularly suited for a use involves showing that the municipality will benefit by placing the building where it is proposed, despite the fact that the local zoning ordinance prohibits that use in that particular location. Because the site must be uniquely suited for the use, a prerequisite is a showing that other locations in the surrounding area are not as suitable for the use. For example, an applicant may be allowed to build a parking lot for employee parking next to his office, despite the fact that parking lots are prohibited in the zone, because the site is particularly suited for a parking lot due to the fact that adequate space is not conveniently available elsewhere and the lot where the parking lot is placed had previously been a gas station.

The final way for an applicant to obtain a D variance is to show that special reasons exist because the applicant will suffer “undue hardship”, if compelled to use the property in conformity with the permitted uses in the zone. This is not the same as the hardship standard for a C variance and is a much harder standard to satisfy. The undue hardship for a D variance involves showing that the property cannot reasonably be adapted to a conforming use. This situation exists mainly in two scenarios. First, when an area is zoned exclusively for outdated uses, such as a downtown main street zoned for residential uses. Second, when a split-zone lot exists, such as a lot that has the front half in a commercial zone and the back half in a residential zone. Courts have made it clear that an inability to make the most profit is not a sufficient reason to justify a D variance based on undue hardship circumstances.

Applying for a “D variance” is complicated. It involves following tedious rules and specific proofs that must be established in order to get your variance. Courts have stated that a D variance will always be the exception, rather than the rule. It is important you have an experienced land use and zoning attorney who knows exactly what to show the board to get your variance application granted.

ZONING SCHEDULE OF REGULATIONS

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CONTACT THE ZONING BOARD

Please use the form below to contact the Zoning Board.    The output of this form will go to both the Zoning Board Chairman and the Zoning Board Secretary.    Please make sure to specify a particular ZB case number and/or address to expedite answers to any question(s) you may have about pending or previous ZB cases.

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SITE PLANS FOR ZONING BOARD CASES

Zoning Board Case Site Plans



ARCHIVE OF RECENT CASES HEARD BEFORE THE ZONING BOARD

Zoning Board Cases



BELLEVILLE ZONING REGULATIONS - CHAPTER 23

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