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<br />time a development application is deemed com-
<br />plete, the failure to act shall be deemed an
<br />approval.
<br />(2) The approving authority and the applicant for
<br />a development permit may mutually agree to an
<br />extension of the time limits For a decision speci-
<br />fied in paragraph (1) above For a period not in
<br />excess of [90] days.
<br />(3) If an application For a development permit is
<br />deemed approved under this section, the
<br />approving authority shall send by mail written
<br />notice that the permit has been deemed
<br />approved to all: (a) parties to the record hearing,
<br />and (b) persons and governmental units that
<br />submitted documents and materials to the
<br />administrative review.
<br />(4) The time limits for the decision specified in
<br />this section do not run during any period: (a) of
<br />less than [30] days during which a local govern-
<br />ment requests additional studies or information
<br />concerning a development. permit application;
<br />or (b) in which the local government is unable to
<br />act upon development permit applications due
<br />to circumstances beyond the local government's
<br />control, inciudinga reasonable period for resub-
<br />mission of development permit applications and
<br />related materials destroyed, damaged, or other-
<br />wise rendered unusable.
<br />
<br />115. Appeals
<br />(1) The appeals board shall have the authority to
<br />hear and decide appeals where it is alleged
<br />there is error in a land.use decision made by an
<br />approving authority. An appeal of a land-use
<br />decision may be taken to the appeals board
<br />within 80) days after the decision is issued or
<br />within [30] days after the date the application is
<br />deemed approved under Section 114:
<br />(a) by the applicant for the development permit
<br />and any party to the record hearing if there has
<br />been a record hearing; or (b) if there has been an
<br />administrative review: 1. by the applicant for the
<br />development permit; or 2. by any person or gov-
<br />emmental unit aggrieved by the land-use decision.
<br />There shall be no more than one record
<br />appeal on an application For a master permit.
<br />
<br />Comment: The authority of the appealS board
<br />
<br />extends only to appeals that are administrative
<br />
<br />in nature. Consequently. the appeals board can.
<br />
<br />not hear decisions that are not final (e.g.. pre.
<br />
<br />liminary approvals of subdivisions or decisions
<br />
<br />on zoning map amendments and amendments
<br />
<br />to the land development regulations).
<br />
<br />(2) The party appealing must file a notice of
<br />appeal specifying the groundS for the appeal
<br />with the approving authority that made the deci.
<br />sion that led to the appeal, and with the appeals
<br />board. The approving authority that made the
<br />decision that led to the appeal shall transmit to
<br />the appeals board the record for the land.use
<br />decision that the party is appealing.
<br />(3) The appealS board may dismiss an appeal if
<br />it determines the notice of appeal is legally
<br />insufficient on its face.
<br />
<br />Comment: If a record hearing has been held
<br />on a development permit application, any per.
<br />son who could be aggrieved has the opportu.
<br />
<br />nity to become a party to the hearing, so this
<br />
<br />section limits appeals to persons who became
<br />
<br />parties. If there has been an administrative
<br />
<br />review without a hearing. there has been no
<br />
<br />opportunity to establish party status. so the
<br />
<br />applicant and any person aggrieved may
<br />
<br />appeal.
<br />
<br />(4) An appeal that is not dismissed shall stay any
<br />and all proceedings to enforce, execute, or
<br />implement the land-use decision being ap-
<br />pealed. Any development authorized by said
<br />land.use decision, unless the approving author.
<br />ity that made the decision that led to the appeal
<br />certifies in writing to the appeals board that a
<br />stay in the decision or development thereunder
<br />would cause immediate and irreparable harm to
<br />the appellant.
<br />(5) The appeals board shall set the time and
<br />place at which it will consider the appeal. which
<br />shall be no more than [20j.days from the time
<br />the appeal was filed. The appeals bO;lrd. shall
<br />give at least (10] days' notice of the appeal hear-
<br />ing to the approving authority that made the
<br />decision that led to the appeal and to the parties
<br />to the appeal.
<br />(6) The appeals board shall hold. a hearing on
<br />the record in a record appeal. The appealS board
<br />may take supplementary evidence in record
<br />appealS only in those limited cases in which it
<br />makes a written finding that evidence proffered
<br />by any party was improperly excluded from the
<br />record hearing. If the appeals board decides to
<br />take supplementary evidence, it shall provide
<br />mailed notice of this decision to all parties to
<br />the record hearing that was appealed and shall
<br />hold a record hearing as required by the local
<br />government's unified development review
<br />process.
<br />(7) An appeals board shall issue a written deci.
<br />sion after the record hearing in which it may
<br />reverse or affirm, wholly or in part, or may mod.
<br />ify a land-use decision that has been appealed,
<br />and shall have the authority in making such a
<br />decision to exercise all the powers of the approv-
<br />ing authority that made the decision that ied to
<br />the appeal. insofar as they concern the issues
<br />stated in the appeal. A tie vote is an affirmation
<br />of the decision that was appealed.
<br />(8) The appeals board shall not make finding,s of
<br />fact unless the board has taken evidence supple-
<br />menting the record on ap'peal,in which case it
<br />shall make findings of fact based on this evidence
<br />and shall make a decision based on such findings.
<br />(9) In an appeal from an administrative review.
<br />the appeals board shall hold a record hearing
<br />and make a decision as provided in Sections 110
<br />to 114 above.
<br />(10) The appeals board shall mail a notice of any
<br />decision to the parties to the appeal and to the
<br />[local planning agency or code enforcement offi.
<br />cer) of the local govemment within [301 days of
<br />the commencement of the hearing.
<br />(11) The appeals board shall keep written min-
<br />utes of its proceedings, showing the vote of each
<br />member upon each appeal or, if absent or failing
<br />to vote, indicating that fact, and shall keep
<br />records of its official actions in its office.
<br />(12) The [name of legislative body) shall adopt
<br />rules of procedure for the appeals board.
<br />
<br />Comment: This section describes an appeals
<br />procedure conceming land.use decisions. It
<br />gives the authority to an appeals board to hear
<br />appeals. The appeals board can hear appeals:
<br />(a) on the record, which occurs where there has
<br />already been a record hearing (e.g., when there
<br />has been a hearing on a conditional use per-
<br />mit); and (b) subject to a record hearing held by
<br />the appeals board, which would occur in the
<br />case of an administrative decision (e.g.. the
<br />decision on a zoning permit). An appeals board
<br />could not. however. hear appeals it had previ.
<br />ously heard. One situation needs special atten.
<br />tion. If there is an existing board of zoning
<br />appeals and it is charged with selVing as the
<br />appeals board. an alternate body must be des.
<br />ignated as the appeals board in the case of
<br />record appeal~on variances. A good altemative
<br />is to assign the lob of conducting the review to
<br />a hearings officer.
<br />
<br />116. Code Interpretations; Index of inter-
<br />pretations [available as web.based enhance.
<br />ment on the Zoning Practice web pages]
<br />
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<br />
<br />VOl. 23. NO.6
<br />Zoning Practice is a monthly publication of the
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