Title
BOARD OF ADJUSTMENT APPEAL
In the Matter of the Appeal to the Municipal Council from the Grant
of a Use (“D”) Variance for a Driveway with a Width
Exceeding Twenty (20) Feet at 2-16 Avenue C
Appeal No. ZBA-15-4
(No transcript provided)
Josephine Stewart, Appellant
2 Avenue C L.L.C./Anderson Vieira, Applicant
Body
DECISION
WHEREAS, an appeal has been filed by Josephine Stewart to the Municipal Council of the City of Newark on February 17, 2015 from a decision by the Board of Adjustment dated February 5, 2015, pertaining to a truck repair shop at 2-16 Avenue C (Application ZBA-15-4), which decision granted a Use (“D”) Variance for driveway with width exceeding 20 feet; and, two “C” Variances for no on-site parking; and, projection sign exceeding maximum area; and
WHEREAS, the Municipal Council only has statutory authority to review the granting of the Use (“D”) Variance and has no statutory authority to review “C” Variances; and
WHEREAS, the appeal concerning the granting of the “D” Variance, pursuant to N.J.S.A. 40:55D-17, being an appeal de novo on the record established at the Board of Adjustment; and
WHEREAS, the Board of Adjustment decision was published on March 13. 2015; and
WHEREAS, N.J.S.A. 40:55D-17C requires the Appellant to arrange for a transcript of the proceedings before the Board of Adjustment within 5 days of the date of filing the Notice of Appeal; and
WHEREAS, Appellant has failed to arrange for the said transcript to date in violation of N.J.S.A. 40A:55D-17C, despite being advised in writing by attorneys for the Municipal Council of her obligation to do so, and
WHEREAS, N.J.S.A. 40A:55D-17C provides that the Municipal Council is required to conclude its review of the record established before the Board of Adjustment not later than 95 days from the date of publication of the notice of the decision by the Board of Adjustment which occurred on March 13, 2015; and
WHEREAS, the statute further provides that failure of the Municipal Council to hold a hearing, conclude a review of the record below and to render a decision within the specified 95 day statutory period, which commenced on March 13, 2015, shall constitute a decision affirming the action of the Board of Adjustment; and
WHEREAS, the Municipal Council has been precluded from concluding its review of the record below due to the failure of Appellant to order the transcript, in violation of N.J.S.A. 40A:55D-17C, and the 95 day statutory period for review has expired, which shall constitute the decision by the Board of Adjustment to be affirmed pursuant to N.J.S.A. 40:55D-17 C.
NOW THEREFORE, for the reasons set forth herein,
It is on this day of August, 2015, ORDERED as follows:
1. The within appeal is hereby dismissed.
2. The City Clerk shall mail a copy of this Decision to the Appellant and the Applicant no later than 10 days from the date of this Decision.
3. The City Clerk shall publish a brief notice of the Decision in a newspaper with general circulation in the municipality.
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Mildred C. Crump
Council President
ATTEST:
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Kenneth Louis, City Clerk