A.
A Zoning Board of Adjustment is hereby established
pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven members
of the Borough of Middlesex appointed by the Borough Council to serve
for terms of four years from January 1 of the year of their appointment.
The terms of the members first appointed shall be so determined that,
to the greatest practicable extent, the expiration of such terms shall
be distributed evenly over the first four years after their appointment,
provided that the initial term of no member shall exceed four years.
Thereafter, the term of each member shall be for four years. Nothing
in this chapter shall, however, be construed to affect the term of
any present member of the Zoning Board of Adjustment, all of whom
shall continue in office until the completion of the term for which
they were appointed.
[Amended 1-13-2004 by Ord. No. 1593-04]
B.
No member of the Zoning Board of Adjustment may hold
any elective office or elective position under the municipality. A
member may, after public hearing, if such a hearing is requested by
such member, be removed by the governing body for cause.
C.
A vacancy occurring otherwise than by expiration of
term shall be filled for the unexpired term only.
[Added 2-13-1979 by Ord. No. 818; amended 1-13-2004 by Ord. No. 1593-04]
There shall be two alternate members appointed
to the Zoning Board of Adjustment by the Borough Council, and the
term of each alternate member shall be two years from January 1 of
the year of his appointment. Alternate members shall be designated
by the Chairman of the Zoning Board as "Alternate No. I" and "Alternate
No. II" and shall serve in rotation during the absence or disqualification
of any regular member or members.
The Board of Adjustment shall elect a Chairman
and Vice Chairman from its members and shall also select a Secretary
who may be either a Board member or another municipal employee.
There is hereby created the office of the Zoning
Board of Adjustment Attorney. The Zoning Board of Adjustment may annually
appoint, and fix the compensation of or agree upon the rate of compensation
of the Zoning Board of Adjustment Attorney, who shall be an attorney
other than the Municipal Attorney.
The Zoning Board of Adjustment may also employ
or contract for and fix the compensation of such experts and other
staff and services as it may deem necessary. The Board shall not authorize
expenditures which exceed, exclusive of gifts or grants, the amount
appropriated, either initially or by transfer of funds, by the governing
body for its use.
The Board shall adopt such rules and regulations
as may be necessary to carry into effect the provisions and purposes
of this chapter. In the issuance of subpoenas, administration of oaths
and taking of testimony, the provisions of the County and Municipal
Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
B.
It is further the intent of this chapter to confer
upon the Zoning Board of Adjustment as full and complete powers as
may lawfully be conferred upon such Board, including, not by way of
limitation, the authority, in connection with any case, action or
proceeding before the Board, to interpret and construe the provisions
of this chapter, or any term, clause, sentence or word hereof, and
the Zoning Map,[2] in accordance with the general rules of construction applicable
to legislative enactments.
[2]
Editor's Note: The Zoning Map is on file in
the Borough offices.
C.
The Board may, in appropriate cases and subject to
appropriate conditions and safeguards, grant variances from the terms
of this chapter in accordance with the general or specific rules contained
herein and with the general rules hereby laid down that equity shall
be done in cases where the strict construction of the provisions of
this chapter would work undue hardship. The powers and duties of the
Board having been delegated to and imposed upon it by statute, the
Board shall in all cases follow the provisions applicable to it in
said P.L. 1975, c. 291,[3] or subsequent statutes in such case made and provided,
and it shall from time to time furnish to any person requesting the
same a copy of its rules and information as to how appeals or applications
may properly be filed with the Board for its decision thereon.
[3]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
D.
Referral of certain classes of matters by Board of
Adjustment to Planning Board.
[Added 10-26-1982 by Ord. No. 957]
(1)
The Zoning Board of Adjustment, when reviewing site
plans and/or subdivisions which provide for an extension of municipal
facilities, roadways or the construction of more than four residential
units or more than 5,000 square feet of nonresidential space, shall
be referred to the Planning Board for recommendations regarding said
application. The recommendations of the Planning Board may be rejected
only by a majority vote of the full authorized membership of the Zoning
Board of Adjustment.
(2)
The referral of said plan shall not extend the time
for action by the Zoning Board of Adjustment, whether or not the Planning
Board has submitted its report. If the Planning Board fails to forward
its recommendation to the Zoning Board of Adjustment within 21 days
after its receipt of the referral request, the Zoning Board of Adjustment
may take action on the application without waiting for the recommendations
of the Planning Board.
A.
Appeals and/or applications to the Board of Adjustment
may be taken by any person aggrieved or by an officer, department,
board or bureau of the municipality affected by any decision of the
administrative officer. Each appeal and/or application shall be taken
within the 65 days prescribed by the statute by filing a notice of
appeal with the officer from whom the appeal was taken, together with
seven copies of said notice with the Secretary of the Board of Adjustment.
Said notice of appeal shall specify the grounds for said appeal. The
officer from whom the appeal is taken shall forthwith transmit to
the Board all the papers constituting the record upon which the action
appealed from was taken.
B.
Applications addressed to the original jurisdiction
of the Board of Adjustment shall be filed with the Zoning Officer.
Seven copies of the application shall be filed. At the time of filing
the appeal or application, but in no event less than 15 days prior
to the date set for hearing, the applicant shall also file all plot
plans, maps or other papers required by virtue of any provision of
this chapter or any rule of the Board of Adjustment. The applicant
shall obtain all necessary forms from the Zoning Officer. The Secretary
of the Board shall inform the applicant of the steps to be taken to
initiate proceedings and of the regular meeting dates of the Board.
C.
An appeal stays all proceedings in furtherance of
the action in respect of which the decision appealed from was made,
unless the officer from whom the appeal is taken certifies to the
Board of Adjustment, after the notice of appeal shall have been filed
with him, that by reason of facts stated in the certificate a stay
would, in his opinion, cause imminent peril to life or property. In
such case, proceedings shall not be stayed otherwise than by a restraining
order which may be granted by the Board of Adjustment or by the Superior
Court of New Jersey on application or notice to the officer from whom
the appeal is taken and on due cause shown.
In exercising the above-mentioned power, the
Board of Adjustment may, in conformity with the provisions of P.L.
1975, c. 291,[1] or amendments thereto, or subsequent statutes applying,
reverse or affirm, wholly or partly, or may modify the order, requirement,
decision or determination appealed from and make such other requirement,
decision or determination as ought to be made, and to that end have
all the powers of the administrative officer from whom the appeal
was taken.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
Any variance from the terms of this chapter
hereafter granted by the Board of Adjustment permitting the erection
or alteration of any structure or structures or permitting a specified
use of any premises shall expire by limitation unless such construction
or alteration shall have been actually completed on each and every
structure permitted by said variance or unless such permitted use
has actually been completed within nine months from the date of entry
of the judgment or determination of the Board of Adjustment or within
such further time as is allowed by the Board; except, however, that
the running of the period of limitation herein provided shall be tolled
from the date of filing an appeal from the decision of the Board of
Adjustment to the governing body or to a court of competent jurisdiction,
until the termination in any manner of such appeal or proceeding.
A.
The Board of Adjustment shall have such powers as
are granted by law to:
(1)
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 official or agency based on or made in the enforcement of Chapter 420, Zoning.
(3)
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property, by reason of exceptional topographic conditions or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation in Chapter 420, Zoning, would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, to grant upon an application or an appeal relating to such property a variance from such strict application, so as to relieve such difficulties or hardship; provided, however, that no variance shall be granted under this subsection to allow a structure or use in a district restricted against such structure or use; and further provided 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 shall review a request for a variance pursuant to the Section 47a of the Municipal Land Use Law of 1975 (c. 291, P.L. 1975).
(4)
Grant a variance to allow a structure or use in a
district restricted against such structure or use in particular cases
and for special reasons, but only by the affirmative vote of at least 2/3
of the full authorized membership of the Board.
B.
No variance or other relief may be granted under the provisions of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and Chapter 420, Zoning. Any application under any subsection of this section may be referred to any appropriate person or agency, including the Planning Board, for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
A.
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 c. 291, P.L. 1975, or conditional use approval, pursuant to N.J.S.A. 40:55D-67, whenever the Board is reviewing an application for approval of a use variance pursuant to Article II, § 56-22A(4) of this chapter.
The Board of Adjustment shall render its decision
not later than 120 days after the date that an appeal is taken from
the decision of an administrative officer or 120 days after the submission
of a complete application for development to the Board pursuant to
the provisions of N.J.S.A. 40:55D-70b. Failure of the board to render
a decision within such one-hundred-twenty-day period or within such
further time as may be consented to by the applicant shall constitute
a decision favorable to the applicant.
Once an application has been denied by the Board
of Adjustment, a substantially similar application shall not be again
considered by the Board, except as provided for herein and pursuant
to c. 291, P.L. 1975,[1] until two years' time lapses from the date of the Board's
resolution of denial.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
