40:55D-76. Other powers
a. Sections 59 through 62 of this article shall apply to the power of the board of adjustment to:
(1) Direct issuance of a permit pursuant to section 25 of this act for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved pursuant to section 23 of this act; or
(2) Direct issuance of a permit pursuant to section 27 of this act for a building or structure not related to a street.
b. The board of adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the planning board, subdivision or site plan approval pursuant to article 6 of this act or conditional use approval pursuant to section 54 of this act, whenever the proposed development requires approval by the board of adjustment of a variance pursuant to subsection d. of section 57 of this act (C. 40:55D-70). The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the board of adjustment. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. The number of votes of board members required to grant any such subsequent approval shall be as otherwise provided in this act for the approval in question, and the special vote pursuant to the aforesaid subsection d. of section 57 shall not be required.
c. Whenever an application for development requests relief pursuant to subsection b. of this section, the board of adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this act. Failure of the board of adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the board of adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
Whenever review or approval of the application by the county planning board is required by section 5 of P.L.1968, c. 285 (C. 40:27-6.3), in the case of a subdivision, or section 8 of P.L.1968, c. 285 (C. 40:27-6.6), in the case of a site plan, the municipal board of adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the county planning board or approval by the county planning board by its failure to report thereon within the required time.
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, c. 291, s. 63, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 25; L.1984, c. 20, s. 13, eff. March 22, 1984.
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Last modified: October 11, 2016