40:55D-17 - Appeal to the governing body; time; notice; modification; stay of proceedings
40:55D-17. Appeal to the governing body; time; notice; modification; stay of proceedings
8. Appeal to the governing body; time; notice; modification; stay of proceedings. a. Any interested party may appeal to the governing body any final decision of a board of adjustment approving an application for development pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), if so permitted by ordinance. Such appeal shall be made within 10 days of the date of publication of such final decision pursuant to subsection i. of section 6 of P.L.1975, c.291 (C.40:55D-10). In the case of any board established pursuant to article 10 of P.L.1975, c.291, the governing body of the municipality in which the land is situated shall be the "governing body" for purposes of this section. The appeal to the governing body shall be made by serving the municipal clerk in person or by certified mail with a notice of appeal, specifying the grounds thereof and the name and address of the appellant and name and address of his attorney, if represented. Such appeal shall be decided by the governing body only upon the record established before the board of adjustment.
b. Notice of the meeting to review the record below shall be given by the governing body by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to subsection h. of section 6 of P.L.1975, c.291 (C.40:55D-10) and to the board from which the appeal is taken, at least 10 days prior to the date of the meeting. The parties may submit oral and written argument on the record at such meeting, and the governing body shall provide for verbatim recording and transcripts of such meeting pursuant to subsection f. of section 6 of P.L.1975, c.291 (C.40:55D-10).
c. The appellant shall, (1) within five days of service of the notice of the appeal pursuant to subsection a. hereof, arrange for a transcript pursuant to subsection f. of section 6 of P.L.1975, c.291 (C.40:55D-10) for use by the governing body and pay a deposit of $50.00 or the estimated cost of such transcript, whichever is less, or (2) within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to the municipal clerk; otherwise, the appeal may be dismissed for failure to prosecute.
The governing body shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to subsection i. of section 6 of P.L.1975, c.291 (C.40:55D-10), unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the board.
d. The governing body may reverse, remand, or affirm with or without the imposition of conditions the final decision of the board of adjustment approving a variance pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70). The review shall be made on the record made before the board of adjustment.
e. The affirmative vote of a majority of the full authorized membership of the governing body shall be necessary to reverse or remand to the board of adjustment or to impose conditions on or alter conditions to any final action of the board of adjustment. Otherwise the final action of the board of adjustment shall be deemed to be affirmed; a tie vote of the governing body shall constitute affirmance of the decision of the board of adjustment.
f. An appeal to the governing body shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the board from whose action the appeal is taken certifies to the governing body, after the notice of appeal shall have been filed with such board, that by reason of facts stated in the certificate, a stay would, in its opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court on application upon notice to the board from whom the appeal is taken and on good cause shown.
g. The governing body shall mail a copy of the decision to the appellant or, if represented, then to his attorney, without separate charge, and for a reasonable charge to any interested party who has requested it, not later than 10 days after the date of the decision. A brief notice of the decision shall be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained herein shall be construed as preventing the applicant from arranging such publication if he so desires. The governing body may make a reasonable charge for its publication. The period of time in which an appeal to a court of competent jurisdiction may be made shall run from the first publication, whether arranged by the municipality or the applicant.
h. Nothing in this act shall be construed to restrict the right of any party to obtain a review by any court of competent jurisdiction, according to law.
L.1975,c.291,s.8; amended 1979,c.216,s.11; 1984,c.20,s.6; 1991,c.256,s.3.