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.
(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.
(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.
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.
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.
