Hamilton Township City Zoning Code
ARTICLE VI
Zoning Board of Adjustment; Planning Board
§ 550-191 Establishment of Zoning Board of Adjustment.
A.
The Zoning Board of Adjustment heretofore created is continued and is hereby established pursuant to the Municipal Land Use Law as the Board of Adjustment for the municipality. It shall consist of seven members, who shall be appointed by the Mayor, with the advice and consent of the governing body, for terms of four years, each computed from January 1 of the year of their appointment, except full terms filled for the first time under this section shall be so fixed for four or less years and so arranged that, to the greatest practicable extent, the expiration of all terms will be distributed evenly over the first four years after the initial appointment.
B.
There may be appointed two alternate members in addition to the seven regular members of the Zoning Board of Adjustment. Alternate members shall be designated by the Mayor as Alternate No. 1 and Alternate No. 2. 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.
C.
Any vacancy on said Board occurring other than by expiration of term shall be filled by appointment by the Mayor, with the advice and consent of the governing body, to serve for the unexpired term of the member whose term shall become vacant. A member may be removed by the governing body for cause but only after public hearing and other requested procedural due process protections.
D.
Yearly, the Zoning Board of Adjustment shall organize by selecting from among its regular members a Chairman and Vice Chairman. The Board shall also select a Secretary, who may or may not be a member of the Board or a municipal employee. The Board may employ or contract for and fix the compensation of legal counsel, other than the municipal Attorney, and experts and other staff and services as it shall deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
E.
If the Board of Adjustment lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the member's 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 are the 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 Chair of the Planning Board shall make the choice.[1]
§ 550-192 Powers and duties of Zoning Board of Adjustment.
A.
General powers. The Board of Adjustment shall have the power to:
(1)
Error or refusal. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement or decision or refusal made by an administrative officer based on or made in the enforcement of the zoning provisions of this chapter.
(2)
Interpretations and special questions. Hear and decide requests for interpretation of the Zoning Map or this chapter or for decisions upon other special questions upon which the Board is authorized to pass by any zoning or official map ordinance.
(3)
Variance of area and yard requirements.
(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 regulation of this chapter 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 this chapter would be advanced by a deviation from zoning ordinance requirements, and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations of this chapter; provided, however, that no variance from those departures enumerated in Subsection A(4) of this section 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 this chapter.
(4)
Variance of use regulations.
(a)
In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to this chapter to permit:
1.
A use or principal structure in a district restricted against such use or principal structure.
2.
An expansion of a nonconforming use.
3.
Deviation from a specification or standard pursuant to this chapter pertaining solely to a conditional use.
4.
An increase in the permitted density, except as applied to the required lot area for a 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.
(b)
A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board.
B.
General provisions. No variance or other relief may be granted under the terms 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 the purpose of the zone plan and zoning ordinances. In respect to any airport hazard areas delineated under the Air Safety and Zoning Act of 1983, N.J.S.A. 6:1-80 et seq., no variance or other relief may be granted under the terms of this section permitting the creation or establishment of a nonconforming use which would be prohibited under the standards promulgated pursuant to that act except upon issuance of a permit by the Commissioner of Transportation. 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.
C.
Other powers. The Zoning Board of Adjustment shall have such other powers as described by law, including but not limited to the following:
(1)
Direct issuance of a building permit for the construction of a building or structure within the bed of a mapped street or public drainageway, flood control basin or public area as shown on a duly adopted Official Map of the municipality whenever one or more parcels of land within said bed cannot yield a reasonable return to the owner unless a building permit is granted. The Board may grant such relief only by an affirmative vote of a majority of the full authorized membership of the Zoning Board of Adjustment, ensuring that such relief will tend to cause a minimum change of the Official Map and will not significantly add to the cost of opening any proposed street. The Board shall impose reasonable requirements as a condition of granting the building permit so as to promote the health, morals, safety and general welfare of the public.
(2)
Direct issuance of a building permit for the construction of a building or structure on a lot not abutting a street which is shown on a duly adopted Official Map of the municipality or which is an existing state, county or municipal street or highway; or a street shown upon a plat approved by the municipal Planning Board; or a street on a plat duly filed in the office of the County Recording Officer. The Board may grant such relief only where the enforcement of the statute requirement that a building lot abut a street would entail practical difficulty or unnecessary hardship or where the circumstances of the case do not require the building or structure to abut a street. The Board shall impose requirements or conditions that will provide adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of the health and safety and will protect any future street layout shown on the Official Map or on the general circulation plan element of the municipal Master Plan.
(3)
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 or conditional use approval whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to Subsection A(4) above. 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 approvals shall be granted unless such approvals 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 provisions of this chapter. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in this chapter for the approval and question, and the special vote pursuant to Subsection A(4) above shall not be required.
§ 550-193 Appeals and applications to Zoning Board of Adjustment.
A.
Appeals to the Zoning Board of Adjustment may be taken by an interested party affected by any decision of an officer of the municipality based on or made in the enforcement of this chapter or the Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken, specifying the ground of such appeal. The officer from whom the appeal is taken shall immediately transmit to the Board all papers constituting the record upon which the action appealed from was taken. Public notice shall be given as required in § 550-196E.
B.
A developer may file an application for development with the Zoning Board of Adjustment for action under any of its powers without prior application to an officer of the municipality.
C.
The Zoning Board of Adjustment shall render a decision not later than 120 days after the date that either an appeal is taken from the decision of an administrative officer or a complete application for development is submitted to the Board by a developer. 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. 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 chapter.
§ 550-194 Establishment of Planning Board.
A.
A Planning Board is hereby established, consisting of nine members of the following four classes:
(2)
Class II: one of the officials of the municipality other than a member of the governing body, to be appointed by the Mayor, provided that, if there is an environmental commission, the member of the Environmental Commission who is also a member of the Planning Board, as required by N.J.S.A. 40:56A-1, shall be deemed the Class II Planning Board member if there is both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV members or alternate members.
(3)
Class III: a member of the governing body, to be appointed by it.
(4)
Class IV: six other citizens of the municipality, to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board, as required by N.J.S.A. 40:56A-1, shall be a Class IV Planning Board member unless there is among the Class IV members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Planning Board.
B.
The term of the member composing Class I shall correspond with his official tenure or, if the member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's official tenure. The terms of the members composing Class II and Class III shall be for one year or shall terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or shall terminate at the completion of his term of office as a member of the Environmental Commission, whichever comes first.[2]
C.
The term of a Class IV member who is also a member of the Board of Adjustment or the Board of Education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever comes first.
D.
The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that, to the greatest practicable extent, the expiration of such term shall be evenly distributed over the first four years after their appointments, as determined by resolution of the governing body; provided, however, that no term of any member shall exceed four years, and further provided that nothing herein shall affect the term of any present member of the Planning Board, all of whom shall continue in office until the completion of their terms of four years except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.
E.
If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.
F.
There may be appointed by the Mayor two alternate members, who shall meet the qualifications of Class IV members of the Planning Board. Alternate members shall be designated at the time of appointment by the Mayor as Alternate No. 1 and Alternate No. 2. The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. A vacancy occurring otherwise than by expiration of term shall be filled by the Mayor for the unexpired term only. No alternate member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. An alternate member may, after public hearing, if he requests one, be removed by the governing body for cause. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. 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.
G.
The Planning Board shall elect a Chairman and Vice Chairman from the members of Class IV and select a Secretary, who may be either a member of the Planning Board or a municipal employee designated by it.
H.
The Board may employ or contract for and fix the compensation of legal counsel, other than the municipal Attorney, and experts and other staff and services as it shall deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
I.
If the Planning Board lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-23 or 40:55D-23.1 from acting on a matter due to the member's personal or financial interests therein, regular members of the Board of Adjustment shall be called upon to serve, for that matter only, as temporary members of the Planning Board in order of seniority of continuous service to the Board of Adjustment until there are the 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 regular members of equal seniority, the Chair of the Board of Adjustment shall make the choice.[3]
§ 550-195 Powers and duties of Planning Board.
The Planning Board shall have the powers listed below in addition to other powers established by law:
A.
Make, adopt and from time to time amend a Master Plan for the physical development of the Township, including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the Master Plan of the Township.
B.
Administer the provisions of this chapter.
C.
Participate in the preparation and review of programs or plans required by state or federal law or regulation.
D.
Assemble data on a continuing basis as part of a continuous planning process.
E.
Annually assist in the preparation of a program, and amendments thereto, of municipal capital improvement projects projected over a term of six years, and recommend same to the governing body.
F.
Consider and make report to the governing body within 35 days after referral as to any proposed development regulation submitted to it, and also pass upon other matters specifically referred to the Planning Board by the governing body.
G.
The Planning Board shall have such other powers as are prescribed by law, including, but not limited to, the power to grant the following variances, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment, when the Planning Board is reviewing applications for approval of subdivision plans, site plans or conditional uses:
(1)
Variances pursuant to § 550-192A(3) of this chapter.
(2)
Direction, pursuant to § 550-192C(1) of this chapter, for issuance of a permit for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area.
(3)
Direction, pursuant to § 550-192C(2) of this chapter, for issuance of a permit for a building or structure on a lot not abutting a street.
H.
Exception in application of subdivision or site plan regulation and simultaneous review and approval.
(1)
The Planning Board, when acting upon applications for preliminary or minor subdivision approval, shall have the power to grant such exceptions from the requirements for subdivision approval as may be reasonable and within the general purpose and intent of the provisions for subdivision review and approval of this chapter if the literal enforcement of one or more of such provisions is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.
(2)
The Planning Board, when acting upon applications for preliminary site plan approval, shall have the power to grant such exceptions from the requirements for site plan approval as may be reasonable and within the general purpose and intent of the provisions for site plan review and approval of this chapter if the literal enforcement of one or more of such provisions is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.
(3)
The Planning Board shall have the power to review and approve or deny conditional uses or site plans simultaneously with review for subdivision approval without the developer being required to make further application to the Planning Board or the Planning Board being required to hold further hearings. The longest time period for action by the Planning Board, whether it be for subdivision, conditional use or site plan approval, shall apply. Whenever approval of a conditional use is requested by the developer pursuant to this subsection, notice of the hearing on the plat shall include reference to the request for such conditional use.
§ 550-196 Provisions applicable to both Planning Board and Board of Adjustment.
[Amended 10-20-2004 by Ord. No. 04-041; 3-16-2005 by Ord. No. 05-007]
A.
Conflicts of interest. No member of the Planning Board or Zoning Board of Adjustment shall act on any matter in which he has, either directly or indirectly, any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto.
B.
Meetings.
(1)
Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.
(2)
Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which meeting shall be held on notice to its members and the public in accordance with all applicable legal requirements.
(3)
No action shall be taken at any meeting without a quorum being present, said quorum to be the majority of the full authorized membership of the Board.
(4)
All actions shall be taken by a majority vote of members of the municipal agency present at the meeting, except as otherwise required by a provision of N.J.S.A. 40:55D-1 et seq.
(5)
All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with municipal regulations. Any executive session for the purpose of discussing and studying any matters to come before the agency shall not be deemed a regular or special meeting within the meaning of this chapter.
C.
Records.
(1)
Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Planning Board or the Zoning Board of Adjustment and of the persons appearing by attorney, the action taken by the Planning or Zoning Board, the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available for public inspection during the normal business hours at the office of the administrative officer. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes.
(2)
A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made by either stenographic, mechanical or electronic means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense. The municipality, in furnishing a transcript of the proceedings to an interested party at his expense, shall not charge such interested party more than the maximum permitted in N.J.S.A. 2B:7-4. Such transcript shall be certified in writing by the transcriber to be accurate.[1]
D.
Public hearings.
(1)
The Planning Board or Zoning Board of Adjustment, as the case may be, shall hold a hearing on each application for development. Each Board shall make the rules governing such hearings.
(2)
Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the administrative officer. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
(3)
The officer presiding at the hearing, or such person as he may designate, shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigation Law, N.J.S.A. 2A:67A-1 et seq., shall apply.
(4)
The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
(5)
Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
(6)
All actions shall be taken by majority vote of the members of the Board present at the meeting, except as otherwise required by N.J.S.A. 40:55D-1 et seq.
(7)
A member of a Board who is absent from one or more of the meetings at which a hearing was held 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 hearings from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.
E.
Public notice of a hearing.
(1)
Public notice of a hearing shall be given for the following applications for development:
(a)
Any request for a variance.
(b)
Any request for conditional use approval.
(c)
Any request for the issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street. [See § 550-192C(1) and (2).]
(d)
Any request for preliminary site plan approval.
(e)
Any request for preliminary subdivision approval.
(g)
A request for interpretation of any zoning provision of this chapter.
(h)
Appeals from action by the administrative officer.
(i)
Any request for a waiver of subdivision, site plan or any other design standards.
(2)
The Secretary of the Planning Board or Zoning Board of Adjustment, as the case may be, shall notify the applicant at least two weeks prior to the public hearing at which the application will be discussed. Notice of a hearing requiring public notice shall be given by the applicant at least 10 days prior to the date of the hearing in the following manner:
(a)
By publication in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality.
(b)
To all owners of real property, as shown on the current tax duplicate, located in the state and within 200 feet in all directions of the property which is the subject of such hearings; provided, however, that this requirement shall be deemed satisfied by notice to the condominium association, in the case of any unit owner whose unit has a unit above or below it, or horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by serving a copy thereof on the property owner, as shown on said tax duplicate, or his agent in charge of the property, or by mailing a copy thereof by certified mail to the property owner at his address, as shown on said current tax duplicate. It is not required that a return receipt be obtained. Notice is deemed complete upon mailing.
(c)
Notice to a partnership owner may be made by service upon any partner; notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation; notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, shall be sufficient without further notice to unit owners, co-owners or homeowners on account of such common elements or areas.
(d)
To the clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of said adjoining municipality or municipalities, which notice shall be given by personal service or certified mail.
(e)
To the Mercer County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the Mercer County Official Map or the Mercer County Master Plan or adjoins other county land.
(f)
To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.
(3)
Upon written request of the applicant, the administrative officer shall, within seven days, make and certify a list from the current tax duplicates of the names and addresses of owners within the Township to whom the applicant is required to give notice. The applicant shall be charged a sum not to exceed $0.25 per name or $10, whichever is greater, for said list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding. Additionally, the applicant shall be responsible for giving proper notice to all property owners concerned pursuant to Subsection E(2)(b) above that do not reside within the Township.
(4)
The applicant shall file an affidavit or proof of service with the Planning Board or Zoning Board of Adjustment, as the case may be.
(5)
The notice shall state the date, time and place of the hearing and the nature of the matters to be considered, and an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal Tax Assessor's office, and the location and times at which any maps or documents for which approval is sought are available for inspection.[3]
[3]
Editor's Note: Former Sec. 160-196(e)(6), regarding posting of a sign on property which is the subject of an application, which immediately followed this subsection, was repealed 9-17-2013 by Ord. No. 13-031.
F.
Resolutions of memorialization. The Planning Board or the Zoning Board of Adjustment, as the case may be, shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision in writing. The Board shall provide the findings and conclusions through:
(1)
A resolution adopted at a meeting held within the time period provided in N.J.S.A. 40:55D-1 et seq., for action by the Board on the application for development; or
(2)
A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the Board voted to grant or deny approval. Only the members of the Board who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approve an application) shall be memorialized by a resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required by N.J.S.A. 40:55D-10. If the Board fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the Board to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorneys' fees, shall be assessed against the municipality.
§ 550-197 Appeals to governing body.
[Amended 1-18-2006 by Ord. No. 06-001]
There shall be no appeals to the governing body of any decision of the Planning Board.
A.
Any interested party may appeal to the governing body any final decision of the Board of Adjustment approving an application for a use variance.
B.
Such appeal shall be made within 10 days after the date of publication of the final decision by serving upon the Municipal Clerk personally, or by certified mail, a notice of appeal specifying the grounds thereof and the name and address of the appellant and, if represented, his attorney. A copy of such notice shall also be filed by the appellant with the Board of Adjustment. The notice served upon the Municipal Clerk shall be accompanied by a payment to the municipality of a fee of $50.[1]
C.
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 of Adjustment certifies to the governing body, after the notice of appeal has been filed with such Board, that by reason of facts stated in the certificate a stay would, in the Board's opinion, cause imminent peril to life or property; and in such a case, proceedings shall not be stayed other than by order of the Superior Court on application upon notice to such Board and on good cause shown.
D.
An appeal shall be decided by the governing body only upon the record established before the Board of Adjustment.
E.
The appellant shall, within five days of service of the notice of appeal, arrange for a transcript for use by the governing body and pay a deposit of $50 or the estimated costs of such transcript, whichever is less, or within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to the municipal Clerk; otherwise the governing body, on its own motion or on motion of any person entitled to notice of the Board of Adjustment's decision, after hearing upon at least 10 days' written notice to the appellant by the moving party, may dismiss the appeal.
F.
Written notice of the meeting to review the record shall be given by the governing body by personal service or certified mail to the appellant; to those entitled to notice of the Board of Adjustment's decision pursuant to § 550-196; and to the Board of Adjustment, at least 10 days prior to the date of the meeting.
G.
The governing body may affirm, with or without the imposition of conditions, reverse or remand the final decision appealed from. The affirmative vote of a majority of the full authorized membership of the governing body shall be necessary to reverse, remand or affirm, with or without conditions, the decision on appeal.
§ 550-198 Notice of decisions.
Any decision of the Planning Board or Zoning Board of Adjustment, when acting upon an application for development, any decisions of the governing body, when acting upon an appeal, and any decision of the administrative officer, when acting upon a waiver, shall be noticed in the following manner:
A.
A copy of the decision shall be mailed within 10 days of the date of decision to the applicant or, if represented, then to his attorney, without separate charge, and to all who request a copy of the decision for a reasonable fee.
B.
A brief notice of the decision shall be published in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality. Such publication shall be paid for by the applicant at the time of application and shall be published within two weeks from the date of the decision. The action of the administrative officer will not become effective until 10 days after the date of the publication of the notice of decision.
C.
A copy of the decision and all submitted documents of record shall be filed with the administrative officer.