A. 
A Zoning Board of Adjustment is hereby established, which shall consist of seven regular members and two alternate members. All regular and alternate members shall be residents of the Township of Middle and shall be appointed by the governing body. Alternate members shall be designated at the time of appointment by the governing body as "Alternate No. 1" and "Alternate No. 2." The terms of the members first appointed under this act shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed, in the case of regular members, evenly over the first four years after their appointment, and, in the case of alternate members, evenly over the first two years after their appointment, provided that the initial term of no regular member shall exceed four years and that the initial term of no alternate member shall exceed two years. Thereafter, the term of each regular member shall be four years; and the term of each alternate member shall be two years. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.
B. 
No member of the Zoning Board of Adjustment may hold any elective office or position under the Township.
C. 
A vacancy occurring otherwise than by expiration of the term shall be filled for the unexpired term only.
D. 
If the Board of Adjustment lacks a quorum because any of its regular or alternate members are prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the members' personal or financial interest therein, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary members of the Board of Adjustment. The Class IV members of the Planning Board shall be called upon to serve in order of seniority of continuous service to the Planning Board until there is a minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between Class IV members of equal seniority, the Chairman of the Planning Board shall make the choice.
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary who may or may not be a member of the Board or a municipal employee.
When any member of the Zoning Board of Adjustment has been absent for one or more of the meetings at which a hearing was held, he shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearing from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.
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 by the governing body for its use.
A. 
The Board of Adjustment shall have the power 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 any administrative officer based on or made in the enforcement of Chapter 250, Zoning.
(2) 
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 in accordance with this chapter.
(3) 
Granting of variances.
(a) 
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property or 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 zoning regulation pursuant to Article 8 of the Municipal Land Use Law 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.
(b) 
Where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirements[1] and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from zoning regulations; provided, however, that no variance from those departures enumerated in N.J.S.A. 40:55D-70d 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 N.J.S.A. 40:55D-60a.
[1]
Editor's Note: See Ch. 250, Zoning.
(4) 
In particular cases and for special reasons, grant a variance to Chapter 250, Zoning, to permit:
(a) 
A use or principal structure in a district restricted against such use or principal structure.
(b) 
An expansion of a nonconforming use.
(c) 
Deviation from a specification or condition of a conditional use.
(d) 
An increase in the permitted floor area ratio as defined in § 218-5 of this chapter.
(e) 
An increase in the permitted density as defined in § 218-5 of this chapter, except as applied to the required lot area for 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.
(f) 
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. If an application for development requests one or more variances but not a variance for a purpose enumerated in this section, the decision on the requested variance or variances shall be rendered on the basis of standards for bulk variances, under Subsection A(3) above.
(5) 
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved on an official map pursuant to N.J.S.A. 40:55D-34. The Board of Adjustment shall not exercise the power otherwise granted by this section if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has the power to direct the issuance of a permit pursuant to N.J.S.A. 40:55D-60b.
(6) 
Direct issuance of a permit for a building or structure not related to a street pursuant to N.J.S.A. 40:55D-36. The Board of Adjustment shall not exercise the power otherwise granted by this section if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has the power to direct the issuance of a permit pursuant to N.J.S.A. 40:55D-60c.
(7) 
Grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37 et seq. or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to N.J.S.A. 40:55D-70d. 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 the grant of all required subsequent approvals by the Board of Adjustment. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in the Municipal Land Use Law for the approval in question.
B. 
No variance or other relief may be granted under the terms of Subsection A(1) through A(4) above, 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 Zoning Regulations.
A. 
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the Township based on or made in the enforcement of the Zoning Ordinance[1] or Official Map. Each appeal shall be taken within the 20 days prescribed by N.J.S.A. 40:55D-72a by filing a notice of appeal with the officer from whom the appeal was taken, together with three copies of said notice, with the Secretary of the Board of Adjustment. Said notice of appeal shall specify the grounds of 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.
[1]
Editor's Note: See Ch. 250, Zoning.
B. 
Applications.
(1) 
Applications addressed to the original jurisdiction of the Board of Adjustment, without prior application to an administrative officer, shall be filed with the Secretary of the Zoning Board of Adjustment. A request by the applicant that his matter be heard on a specified meeting date of the Zoning Board of Adjustment shall be filed with the application. The application shall be filed no later than the first day of the month prior to the month on which the hearing will be held. Whenever revision to any submitted plats or plans is required, the revised plat or plan shall be submitted at least 10 days prior to the requested meeting date. The applicant shall not be guaranteed a hearing on the date requested and the applicant shall not be authorized to proceed with public notice of the application as required by this chapter and the Municipal Land Use Law by publication in the official newspaper, personal service or by certified mail. Authorization for such public notice shall be directed to the applicant by the Secretary of the Board only after the application has been deemed complete and the Secretary has determined that the application can be reasonably presented at the meeting specified by the Secretary for public hearing.
(2) 
Application shall be made on the forms provided from the Board Secretary and shall be accompanied by the required application fee and escrow payments, the appropriate application forms for the type of application(s) involved, satisfactory written proof that the taxes and water and sewer charges on the premises have been paid and the appropriate checklist(s) for the type(s) of applications involved. Eighteen copies of the application shall be filed and 18 copies of the plat, plan or survey shall likewise be submitted, together with the other items noted above. In cases where a site plan approval is involved, the applicant shall also file one reverse sepia print.
(3) 
The Board Secretary, upon consultation with the Board Engineer and Board Attorney, shall review the application for completeness. If the application is deemed complete, the applicant shall be notified and assigned a hearing date at an upcoming Zoning Board meeting. The applicant at this time will also be authorized to serve and publish the necessary public notices of the hearing. If the application is deemed to be incomplete, the developer shall be notified in writing of the deficiencies of the application within 45 days of its submission to the Board Secretary. The application shall be deemed incomplete if any of the required items specified above are not included and/or if the application lacks information required on checklists for the application in question. The applicant may request that one or more of the submission requirements or checklist items be waived. In cases where the applicant is seeking such waiver of said items, a memorandum shall be attached to the application indicating the specific items for which a waiver is sought and all reasons being set forth by the applicant to justify such a waiver. Notations on the checklists concerning waivers shall not be deemed complete or appropriate, and a separate sheet listing waivers and specifying justifications must be submitted. In matters where the application has been deemed incomplete and the applicant so notified, it will be necessary for the applicant to initiate the entire process again, and the Board Secretary shall have an additional forty-five-day period from the date of submission of the corrected application within which to make a determination as to whether or not the corrected application is complete. Notification to the applicant of completeness (and establishment of a hearing date and authorization to proceed with public notice) or incompleteness (with deficiencies noted) shall occur as in the case of the initial submission.
C. 
An appeal to the Zoning Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the officer from whom the appeal was 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 cases, proceedings shall not be stayed otherwise than by a restraining order or by the Superior Court of New Jersey upon notice to the officer from whom the appeal is taken and on due cause shown.
A. 
The Board of Adjustment shall render a decision not later than 120 days after: the date an appeal is taken from the decision of an administrative officer; or the submission of a complete application for development to the Board of Adjustment pursuant to § 218-33B above.
B. 
Failure of the Board of Adjustment 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.
C. 
Whenever an application for development requests relief pursuant to § 218-32A(7) above, 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 Secretary of the Board 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 the Municipal Land Use Law. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the Secretary of the Board 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.
In accordance with the provisions set forth in N.J.S.A. 40:55D-74 or amendments thereto, the Board of Adjustment has the power to reverse or affirm wholly or partly or may modify the action, order, requirement, decision, interpretation or determination appealed from and make such other requirements, 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.
[Amended 10-5-1995 by Ord. No. 942-95]
Any variance from the terms of the Site Plan or Zoning Ordinance[1] hereafter granted by the Board of Adjustment or the Planning Board to permit the construction, alteration, conversion or use of any premises shall expire unless such construction, alteration, conversion or use shall have been actually and actively commenced, within three years from the date of Publication of Notice of the decision by the Zoning Board of Adjustment or Planning Board unless said three-year period of approval has been otherwise extended by statute, Court proceeding or Board action. Any such request for extension of the variance approval time shall require formal application, public notice as required in the case of variance application and a public hearing before the Board which previously granted the variance in question.
[1]
Editor's Note: See Ch. 250, Zoning.