If you are denied the issuance of a permit on the basis that the proposal violates the zoning ordinance, you may wish to seek an appeal of the zoning officer’s decision. An appeal of any order, requirement, decision or refusal made by an administrative officer based on the zoning ordinance is brought by an appellant to the zoning board of adjustment. N.J.S. 40:55D-70a. The review of the decision by the board is to determine whether there was an error under the provisions of the zoning ordinance and applicable statutes. For example, a zoning officer may refuse to issue a zoning permit because the applicant’s proposal does not conform to a particular bulk standard required by the zoning ordinance. The zoning board has the power to reverse the decision of the zoning officer and require the officer to issue a permit if the evidence presented to the board supports such result. Nevertheless, if the zoning officer is correct in the decision, then the board must affirm the zoning officer’s action.
When appealing the decision of an administrative officer, an applicant can make a simultaneous application seeking in the alternative variance relief if the board should affirm the officer’s determination. If the board denies the appeal, then an appeal may be made to Superior Court. The general rule is that all administrative remedies must be exhausted before seeking relief in Superior Court. In the context of the decision of an administrative officer, an appellant must first seek relief from the zoning board, before filing an action in Superior Court. 21st Century v. D’Allessandro, 257 N.J.Super. 320 (App. Div. 1992).
Appeals to the zoning board of adjustment from the decision of an administrative officer must be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. N.J.S. 40:55D-72a. Failure to adhere to the time for appeal will result in the zoning board not having jurisdiction to consider the appeal. See Sitowski v. Zoning Bd. Of Adj., 238 N.J. Super. 255 (App. Div. 1990)(the Law Division set aside the board’s consideration of an untimely appeal framed as an interpretation and the Appellate Division affirmed). All proceedings in furtherance of the matter being appealed are stayed when an appeal of an administrative officer is taken to the zoning board. N.J.S. 40:55D-75. However, the officer whose decision is appealed may certify to the board after the notice of appeal is filed with him that a stay would in his opinion cause imminent peril to life and property by reason of the facts stated in the certification, and in such case the proceedings are not stayed. For example, an appeal by a neighboring property owner of the issuance of a zoning permit would stay the right to build until the zoning board rules on the zoning officer’s decision.
