A.
Establishment.
(1)
The Planning Board presently in existence pursuant to Chapter 291,
P.L. 1975, N.J.S.A. 40:55D-1 et seq., is hereby continued to consist
of nine members of the following four classes:
(a)
Class I: the Mayor.
(b)
Class II: one of the officials of the Borough other than a member
of the Borough Council, 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 to be 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 or alternate
members.
(c)
Class III: a member of the Borough Council, to be appointed
by it.
(d)
Class IV: six other citizens of the Borough, 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 be among the Class IV or alternate
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.
(2)
Alternates. The Mayor shall also appoint two alternate members who
shall meet the qualifications of Class IV members. Alternate members
shall be designated by the Mayor at the time of appointment as "Alternate
No. 1" and "Alternate No. 2."
B.
Terms.
(1)
The term of the member composing Class I shall correspond with his
official tenure. The terms of the members composing Class II and III
shall be for one year or 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 a Class IV member who is also a member of the Environmental
Commission shall be for three years or terminate at the completion
of his term of office as a member of the Environmental Commission,
whichever comes first.
(2)
The term of a Class IV member who is also a member of the Zoning
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 occurs first.
(3)
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 appointment as determined by resolution of
the Borough Council; 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 the term
for which they were appointed. Thereafter, all Class IV members shall
be appointed for 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.
C.
Alternate members; powers; terms of office.
(1)
The Mayor may appoint not more than two alternate members with the
advice of the Borough Council. Alternate members shall meet the qualifications
of Class IV members of nine-member Planning Boards. 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 appointing authority for the unexpired term only.
(2)
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.
(3)
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.
D.
Conflicts. No member or alternate member of the Planning Board shall
be permitted to act on any matter in which he has, either directly
or indirectly, any personal or financial interest.
E.
Vacancies. 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.
Removal. Any member other than a Class I member, after a public hearing,
if he requests one, may be removed by the Borough Council for cause.
G.
If the Planning Board lacks a quorum because any of its regular or
alternate members are prohibited by N.J.S.A. 40:55D-23 or N.J.S.A.
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 Chairman of the Board of Adjustment shall make
the choice.[1]
[1]
Editor's Note: Added at time of codification of the Planning
and Development Regulations.
H.
Organization of Board. 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.
I.
Planning Board Attorney. There is hereby created the office of Planning
Board Attorney. The Planning Board may annually appoint, fix the compensation
of or agree upon the rate of compensation of the Planning Board Attorney,
who shall be an attorney other than the Borough Attorney.
J.
Expenses, experts and staff. The Borough Council shall make provisions
in its budget and appropriate funds for the expenses of the Planning
Board. The Planning Board may also employ or contract for the services
of experts and other staff and services as it may deem necessary.
The Planning Board shall not, however, exceed, exclusive of gifts
or grants, the amount appropriated by the Borough Council for its
use.
K.
Powers and duties. The Planning Board shall adopt such rules and
regulations as may be necessary to carry into effect the provisions
and purposes of this chapter. In the issuance of subpoenas, administration
of oaths and taking of testimony, the provisions of the County and
Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall
apply. The Planning Board shall have the following powers and duties:
(1)
To make and adopt from time to time and amend a Master Plan for the
physical development of the municipality, including any areas outside
its boundaries which, in the Board's judgment, bear essential relation
to the planning of the municipality, in accordance with the provisions
of N.J.S.A. 40:55D-28.
(2)
To administer site plan and land subdivision review in accordance
with the provisions of this chapter and N.J.S.A. 40:55D-37 through
40:55D-59.
(3)
To grant exceptions from certain requirements for subdivision and
site plan approval pursuant to N.J.S.A. 40:55D-51.
(4)
To approve conditional use applications in accordance with the provisions
of this chapter and pursuant to N.J.S.A. 40:55D-67.
(5)
Prior to the adoption of a development regulation, revision, or amendment
thereto, the Planning Board shall make and transmit to the Borough
Council, within 35 days after referral, a report including recommendations
concerning the proposed development regulation, revision, or amendment.
The Borough Council, when considering the adoption of a development
regulation, revision, or amendment thereto, shall review the report
of the Planning Board and may disapprove or change any recommendation
by vote of a majority of its full authorized membership and shall
record in its minutes the reasons for not following such recommendations.
Failure of the Planning Board to transmit its report within the thirty-five-day
period provided herein shall relieve the Borough Council from the
requirements of this subsection in regard to the proposed development
regulation, revision or amendment thereto referred to the Planning
Board.
(6)
To participate in the preparation and review of programs or plans
required by state or federal law or regulations.
(7)
To assemble data on a continuing basis as part of a continuing planning
process.
(8)
To annually prepare a program of municipal capital improvement projects
over a term of six years, and amendments thereto, and recommend same
to the Borough Council pursuant to the provisions of N.J.S.A. 40:55D-29.
(9)
Variances and permits.
(a)
When reviewing applications for approval of subdivision plats,
site plans or conditional uses, to grant to the same extent and subject
to the same restrictions as the Zoning Board of Adjustment:
[1]
Variances pursuant to N.J.S.A. 40:55D-70c.
[2]
Direction pursuant to N.J.S.A. 40:55D-34 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 reserved pursuant
to N.J.S.A. 40:55D-32.
[3]
Direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit
for a building or structure not related to a street.
(b)
Whenever relief is requested pursuant to this subsection, notice
of a hearing on the application for development shall include reference
to the request for a variance or direction for issuance of a permit,
as the case may be.
(c)
The developer may elect to submit a separate application requesting
approval of the variance or direction of the issuance of a permit
and a subsequent application for any required approval of a subdivision,
site plan or conditional use. The separate approval of the variance
or direction of the issuance of a permit shall be conditioned upon
grant of all required subsequent approvals by the Planning Board.
No such subsequent approvals shall be granted unless the approval
can be granted without substantial detriment to the public good and
without substantial impairment of the intent and purpose of the zone
plan and this chapter.
(10)
Review of capital projects pursuant to N.J.S.A. 40:55D.
(11)
To perform such other advisory duties as are assigned to it
by ordinance or resolution of the governing body for the aid and assistance
of the Borough Council or other agencies or officers.
(12)
The Borough Council may by ordinance provide for the reference
of any matter or class of matters to the Planning Board before final
action thereon by a municipal body or municipal officer having final
authority thereon. Such reference shall not extend the time for action
by the referring body, whether or not the Planning Board has submitted
its report. Whenever the Planning Board shall have made a recommendation
regarding a matter authorized by ordinance to another municipal body,
such recommendation may be rejected only by a majority of the full
authorized membership of such other body.
L.
Time limits for action.
(1)
Minor subdivision. Minor subdivision approvals shall be granted or
denied within 45 days of the date of submission of a complete application
to the administrative officer or within such further time as may be
consented to by the applicant. Approval of a minor subdivision shall
expire 190 days from the date of Planning Board approval, unless,
within such period, a plat in conformity with such approval and the
provisions of the Map Filing Law, N.J.S.A. 46:26B-1 et seq., or a
deed clearly describing the approved minor subdivision is filed by
the developer with the county recording officer, the Borough Engineer
and the Borough Tax Assessor. Any such plat or deed must be signed
by the Chairman and Secretary of the Planning Board before it will
be accepted for filing by the county recording officer.
(2)
Minor site plans. Minor site plan approvals shall be granted or denied
within 45 days of the date of submission of a complete application
to the administrative officer or within such further time as may be
consented to by the applicant. Minor site plan approval shall confer
upon the applicant the right that the general terms and conditions
upon which minor site plan approval was granted shall not be changed
for a period of two years.
(3)
Preliminary site plan approval. Upon the submission to the administrative
officer of a complete application for a site plan which involves 10
acres of land or less, and 10 dwelling units or less, the Planning
Board shall grant or deny preliminary approval within 45 days of the
date of such submission or within such further time as may be consented
to by the developer. Upon the submission of a complete application
for a site plan which involves more than 10 acres, and more than 10
dwelling units, the Planning Board shall grant or deny preliminary
approval within 95 days of the date of such submission or within such
further time as may be consented to by the developer. Otherwise, the
Planning Board shall be deemed to have granted preliminary approval
of the site plan.
(4)
Preliminary major subdivision approval. Upon submission of a complete
application to the administrative officer for a subdivision of 10
or fewer lots, the Planning Board shall grant or deny preliminary
approval within 45 days of the date of such submission or within such
further time as may be consented to by the developer. Upon submission
of a complete application to the administrative officer for a subdivision
of more than 10 lots, the Planning Board shall grant or deny preliminary
approval within 95 days of the date of such submission or within such
further time as may be consented to by the developer. Otherwise, the
Planning Board shall be deemed to have granted preliminary approval
of the major subdivision.
(5)
Effect of preliminary approval. Preliminary approval of a major subdivision
or of a site plan shall, except as otherwise provided herein, confer
upon the applicant the following rights for a three-year period from
the date of the preliminary approval:
(a)
That the general terms and conditions on which preliminary approval
was granted shall not be changed, including but not limited to use
requirements; layouts and design standards for streets, curbs and
sidewalks; lot size; yard dimensions and off-tract improvements; and,
in the case of a site plan, any requirements peculiar to site plan
approval pursuant to N.J.S.A. 40:55D-41, except that nothing herein
shall be construed to prevent the municipality from modifying by ordinance
such general terms and conditions of preliminary approval as relate
to public health and safety.
(b)
That the applicant may submit for final approval on or before
the expiration date of preliminary approval the whole or a section
or sections of the preliminary subdivision plat or site plan, as the
case may be.
(c)
That the applicant may apply for and the Planning Board may
grant extensions on such preliminary approval for additional periods
of at least one year, but not to exceed a total extension of two years,
provided that if the design standards have been revised by ordinance,
such revised standards shall govern.
(d)
In the case of a subdivision of or site plan for an area of 50 acres or more, the Planning Board may grant the rights referred to in Subsection L(5)(a), (b) and (c) of this section for such period of time, longer than three years, as shall be determined by the Planning Board to be reasonable, taking into consideration the number of dwelling units and nonresidential floor area permissible under preliminary approval; economic conditions; and the comprehensiveness of the development. The applicant may apply thereafter and the Planning Board may thereafter grant an extension to preliminary approval for such additional period of time as shall be determined by the Planning Board to be reasonable, taking into consideration the number of dwelling units and nonresidential floor area permissible under preliminary approval; and the potential number of dwelling units and nonresidential floor area permissible under preliminary approval; and the potential number of dwelling units and nonresidential floor area of the section or sections awaiting final approval; economic conditions; and the comprehensiveness of the development, provided that if the design standards have been revised, such revised standards shall govern.
(6)
Final approval.
(a)
Application for final subdivision or site plan approval shall
be granted or denied within 45 days of submission of a complete application
to the administrative officer or within such further time as may be
consented to by the applicant.
(b)
Final approval of a major subdivision shall expire 95 days from
the date of signing of the plat, unless, within such period, the plat
shall have been duly filed by the developer with the county recording
officer, the Borough Engineer and the Borough Tax Assessor. The Planning
Board may, for good cause shown, extend the period for recording for
an additional period not to exceed 190 days from the date of signing
of the plat.
(7)
Effect of final approval.
(a)
The zoning requirements applicable to the preliminary approval
first granted and all other rights conferred upon the developer at
preliminary approval, whether conditionally or otherwise, shall not
be changed for a period of two years after the date of final approval,
provided that, in the case of major subdivision, the rights conferred
by this section shall expire if the plat has not been duly recorded
within the required time period. If the developer has followed the
standards prescribed for final approval and, in the case of a subdivision,
has duly recorded the plat, the Planning Board may extend such period
of protection for extensions of one year, but not to exceed three
extensions. Notwithstanding any other provisions of N.J.S.A. 40:55D-1
et seq., the granting of final approval terminates the time period
of the rights conferred by preliminary approval for the section granted
final approval.
(b)
In the case of a subdivision or site plan for a planned unit
development or planned unit residential development or residential
cluster of 50 acres or more or conventional subdivision or site plan
for 150 acres or more, the Planning Board may grant rights for such
period of time, longer than two years, as shall be determined by the
Planning Board to be reasonable, taking into consideration the number
of dwelling units and nonresidential floor area permissible under
final approval; economic conditions; and the comprehensiveness of
the development. The developer may apply for thereafter, and the Planning
Board may thereafter grant, an extension of final approval for such
additional period of time as shall be determined by the Planning Board
to be reasonable, taking into consideration the number of dwelling
units and nonresidential floor area permissible under final approval;
the number of dwelling units and nonresidential floor area remaining
to be developed; economic conditions; and the comprehensiveness of
the development.
(8)
Combined preliminary and final major subdivision or site plan approval.
(a)
An applicant may request and the Planning Board may consent
to accept an application for development for combined preliminary
and final major subdivision or site plan approval, provided that:
[1]
The proposed development is not to be constructed in sections
or stages.
[2]
The applicant pays the application fees and provides all submissions
required for both preliminary and final applications.
[3]
Any notice of hearing requirements applicable to the preliminary
plat stage are complied with.
[4]
The applicant consents to the time limits for action by the
Board to be the greater of the limits set for either preliminary or
final approval.
[5]
The Board is satisfied that the scope of the project is not
so large nor so complex as to require the additional review time which
separate applications would provide.
(b)
Any approval granted by the Planning Board on such combined
application shall confer upon the applicant all the rights set forth
in this section for final approval.
(9)
Conditional uses. The Planning Board shall grant or deny an application
for a conditional use within 95 days of submission of a complete application
by a developer to the administrative officer, or within such further
time as may be consented to by the applicant. The review by the Planning
Board of a conditional use may also include site plan review. The
time period for approval by the Planning Board of conditional uses
shall apply to such site plan review.
(10)
Review in lieu of Board of Adjustment. Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for relief pursuant to Subsection K(9) of this section (N.J.S.A. 40:55D-60), the Planning Board shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit a separate consecutive application, the aforesaid provision shall apply to the application for approval of the variance or direction for issuance of a permit. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter and N.J.S.A. 40:55D-1 et seq.
(11)
Failure to act. Failure of the Planning Board to act within
the period prescribed shall constitute approval of the application,
and a certificate of the administrative officer as to the failure
of the Planning Board to act shall be issued on request of the applicant,
and it shall be sufficient in lieu of the written endorsement or other
evidence of approval, herein required, and shall be so accepted by
the county recording officer for purposes of filing subdivision plats.
(12)
Required approval by County Planning Board. Whenever review
or approval of the application by the Monmouth County Planning Board
is required by N.J.S.A. 40:27-6.3 (County Planning Board Law), in
the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a
site plan, the Planning Board shall condition any approval that it
grants upon timely receipt of a favorable report on the application
by the Monmouth County Planning Board or approval by the Monmouth
County Planning Board by its failure to report thereon within the
required time period.
M.
Advisory Committee. The Mayor may appoint one or more persons as
a Citizens Advisory Committee to assist or collaborate with the Planning
Board in its duties, but such person or persons shall have no power
to vote or take other action required by the Board. Such person or
persons shall serve at the pleasure of the Mayor.
N.
Environmental Commission. Whenever the Environmental Commission,
if and when an Environmental Commission is established in the Borough,
has prepared and submitted to the Planning Board an index of the natural
resources of the municipality, the Planning Board shall make available
to the Environmental Commission an informational copy of every application
for development to the Planning Board. Failure of the Planning Board
to make such informational copy available to the Environmental Commission
shall not invalidate any hearing or proceeding.
O.
Simultaneous review. 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, notice of the hearing on the plat
shall include reference to the request for such conditional use.
P.
Referrals from Zoning Board of Adjustment.
(1)
The Planning Board shall receive and act on all referrals from the
Zoning Board of Adjustment in a timely manner so that the Zoning Board
will receive the advice of the Planning Board within 45 days of the
referral.
(2)
The Planning Board shall review the material referred and may make
recommendations to the Zoning Board of Adjustment in writing and/or
at the public hearing on the application. The Planning Board's recommendations
may contain the Planning Board's opinion as to the compatibility of
the proposal to the Master Plan; applications which may have been
or are currently being processed by the Planning Board for similar
uses; land use, traffic and other data relevant to the application
which the Planning Board has in its files; and what conditions, if
any, the Planning Board would recommend be imposed on the applicant
to improve compatibility with the Master Plan and this chapter should
the Zoning Board of Adjustment grant the variance.
Q.
Continuance of hearing and voting eligibility. A member of the Planning
Board who was absent for 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 hearing from which
he was absent and certifies, in writing, to the Board that he has
read such transcript or listened to such recording.
R.
Informal review. At the request of the developer, the Planning Board
shall grant an informal review of a concept plan for a development
for which the developer intends to prepare and submit an application
for development. The amount of any fees for such an informal review
shall be a credit toward fees for review of the application for development.
The developer shall not be bound by any concept plan for which review
is requested, and the Planning Board shall not be bound by any such
review.
S.
Notice of default. An applicant shall comply with the provisions
of this section whenever the applicant wishes to claim approval of
his application for development by reason of the failure of the municipal
agency to grant or deny approval within the time period provided in
the Municipal Land Use Law, P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et
seq.), or any supplement thereto.
(1)
The applicant shall provide notice of the default approval to the
municipal agency and to all those entitled to notice by personal service
or certified mail of the hearing on the application for development,
but, for purposes of determining who is entitled to notice, the hearing
on the application for development shall be deemed to have required
public notice pursuant to Subsection a of Section 7.1 of P.L. 1975,
c. 291 (N.J.S.A. 40:55D-12).
(2)
The applicant shall arrange publication of a notice of the default
approval in the official newspaper of the municipality, if there be
one, or in a newspaper of general circulation in the municipality.
(3)
The applicant shall file an affidavit of proof of service and publication
with the administrative officer, who, in the case of a minor subdivision
or final approval of a major subdivision, shall be the officer who
issues certificates pursuant to Section 35, Subsection b of Section
38, or Subsection c of Section 63 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-47;
N.J.S.A. 40:55D-50; N.J.S.A. 40:55D-76), as the case may be.
[Amended by Ord. No. 1990-2; Ord. No. 2004-47]
A.
Establishment. The Zoning Board of Adjustment presently in existence
pursuant to N.J.S.A. 40:55D-1 et seq. is hereby continued to consist
of seven regular members and not more than four alternate members,
all of whom shall be residents of the Borough appointed by the Mayor
and confirmed by the Council.
B.
Terms and alternates.
(1)
The members of the Board of Adjustment shall continue until their
respective terms expire. Thereafter, the term of each member shall
be four years from January 1 of the year of their appointment. The
terms of members first appointed under this subsection shall be so
determined that, to the greatest practicable extent, the expiration
of such terms shall be distributed, in the case of regular members,
evenly over the first four years after their appointment and, in the
case of alternate members, evenly over the first two years after their
appointment, provided that the initial term of no regular member shall
exceed four years and that the initial term of no alternate member
shall exceed two years. Thereafter, the term of each regular member
shall be four years, and the term of each alternate member shall be
two years. The terms of not more than two alternates shall expire
in any one year.
(2)
The Mayor may appoint and the Borough Council may confirm not more
than four alternate members who shall be designated at the time of
their appointment as "Alternate No. 1," "Alternate No. 2," "Alternate
No. 3" and "Alternate No. 4." Alternate members shall meet the same
qualifications as regular members.
(3)
Alternate members may participate in all matters, 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 members shall vote
in the order of their numerical designations.
C.
Conflicts. No member of the Board of Adjustment shall be permitted
to act on any matter in which he has, either directly or indirectly,
any personal or financial interest. No member may hold elective office
or position under the municipality.
D.
Vacancies. A vacancy occurring otherwise than by expiration of term
shall be filled for the unexpired term only.
E.
Removal. A member may, after public hearing if he requests one, be
removed by the governing body for cause.
F.
Officers. The Board of Adjustment shall elect a Chairman and Vice
Chairman from its members and shall also select a Secretary who may
or may not be a Board member or another municipal employee.
G.
If the
Board of Adjustment lacks a quorum because any of its regular or alternate
members are 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 Chairman of
the Planning Board shall make the choice.[1]
[1]
Editor's Note: Added at time of codification of the Planning
and Development Regulations.
H.
Board of Adjustment Attorney. There is hereby created the office
of Attorney to the Zoning Board of Adjustment. The Zoning Board of
Adjustment may annually appoint, fix the compensation of or agree
upon the rate of compensation of the Zoning Board of Adjustment Attorney,
who shall be an attorney other than the Borough Attorney. The Board
shall not authorize expenditures which exceed, exclusive of gifts
or grants, the amount appropriated by the governing body for its use.
I.
Expenses, experts and staff. The governing body shall make provision
in its budget and appropriate funds for the expenses of the Board
of Adjustment. The Zoning Board of Adjustment may also employ or contract
for and fix the compensation of such experts and other staff and services
as it may deem necessary. The Board shall not authorize expenditures
which exceed, exclusive of gifts or grants, the amount appropriated
by the governing body for its use.
J.
Rules and regulations. The Board shall adopt such rules and regulations
as may be necessary to carry into effect the provisions and purposes
of this chapter.
K.
Powers of the Zoning Board of Adjustment.
(1)
The Board of Adjustment shall have the power to:
(a)
Hear and decide appeals where it is alleged by the appellant
that there is error in any order, requirement, decision or refusal
made by an administrative official or agency based on or made in the
enforcement of the provisions of this chapter adopted pursuant to
N.J.S.A. 40:55D-62 through 40:55D-68.
[1]
Appeals to the Board of Adjustment may be taken by any interested
party affected by any decision of an administrative officer of the
Borough based on or made in the enforcement of the zoning provisions
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 grounds 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
was taken. A developer may file an application for development with
the Board of Adjustment for action under any of its powers without
prior application to an administrative officer.
[2]
An appeal stays all proceedings in furtherance of the action
in respect of which the decision appealed from was made, unless the
officer from whom the appeal is taken certifies to the Board of Adjustment
after the notice of appeal shall have been filed with him that, by
reason of facts stated in the certificate, a stay would, in his opinion,
cause imminent peril to life or property. In such cases, proceedings
shall not be stayed otherwise than by a restraining order, which may
be granted by the Board of Adjustment or by the Superior Court of
New Jersey on application or notice to the officer from whom the appeal
is taken and on due cause shown.
[3]
The Board of Adjustment may, in conformity with the provisions
of N.J.S.A. 40:55D-1 et seq., reverse or affirm wholly or partly or
may modify the order, requirement, decision or determination appealed
from and make such other requirement, decision or determination as
ought to be made and, to that end, have all the powers of the administrative
officer from whom the appeal was taken.
(b)
Hear and decide requests for interpretation of the Zoning Map
or this chapter or for decisions upon other special questions upon
which such Board is authorized to pass by any zoning or official map
ordinance in accordance with this chapter and N.J.S.A. 40:55D-1 et
seq.
(c)
Bulk variance.
[1]
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
pursuant to N.J.S.A. 40:55D-46 would result in peculiar and exceptional
practical difficulties to, or exceptional and undue hardship upon,
the developer of each 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;
[2]
Where, in an application or appeal relating to a specific piece of property, the purpose of this chapter or the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) would be advanced by a deviation from the requirements of this chapter and the benefits of this deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant N.J.S.A. 40:55D-62 through 40:55D-68; provided, however, that no variance from these departures enumerated in Subsection K(1)(d) of this section (N.J.S.A. 40:55D-70d) 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 § 490-7K(9)(a) of this chapter (N.J.S.A. 40:55D-60a).
(d)
Use variance.
[1]
In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68 to permit a use or principal structure in a district restricted against such use or principal structure; an expansion of a nonconforming use; deviation from a specification or standard pursuant to Article IX, Conditional Uses, of this chapter and N.J.S.A. 40:55D-67 (Conditional uses; site plan review) pertaining solely to a conditional use; an increase in the permitted floor area ratio as defined in § 490-6, Definitions, of this chapter and N.J.S.A. 40:55D-4; an increase in the permitted density as defined in § 490-6, Definitions, of this chapter and N.J.S.A. 40:55D-4, 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 undersize lot or lots resulting from a minor subdivision. A variance under this subsection shall be granted only by an affirmative vote of at least five members.
[2]
No variance or other relief may be granted under the terms of
this subsection or N.J.S.A. 40:55D-70 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 this chapter. In respect of any airport hazard
areas delineated under the Air Safety and Hazardous 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 subsection permitting the creation
or establishment of a nonconforming use which would be prohibited
under the standards promulgated pursuant to the Act except under issuance
of a permit by the Commissioner of Transportation. An application
under this subsection 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 Board of Adjustment shall act.
(2)
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 pursuant to N.J.S.A. 40:55D-37 through 40:55D-59 or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to Subsection K(1)(d) of this section (N.J.S.A. 40:55D-70d). 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 approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and this chapter. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in this chapter and according to N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to N.J.S.A. 40:55D-70d [Subsection K(1)(d) of this section] shall not be required.
(3)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a
building or structure in the bed of a mapped street or public drainageway,
flood-control basin or public area reserved on the Official Map.
(4)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a
building or structure not related to a street.
L.
Referral. Any application to the Zoning Board of Adjustment may be
referred by the Zoning Board to any appropriate person or agency,
Shade Tree Commission and the Environmental Commission for consideration
and report; provided, however, that such reference shall not extend
the time within which the Zoning Board of Adjustment is required to
act.
(1)
If such reports are not received by the Zoning Board of Adjustment
within 45 days from the date or dates of such references, the Zoning
Board of Adjustment may proceed to act without further delay and without
reference to such reports should they be received after the expiration
of such forty-five-day period.
(2)
When such a report is received from the Planning Board within 45
days, the Zoning Board of Adjustment shall take no action inconsistent
therewith except by the affirmative vote of a majority of the fully
authorized membership of the Zoning Board of Adjustment.
(3)
The report of the Shade Tree Commission, Environmental Commission
or any other person or agency shall be advisory only.
M.
Time for decision.
(1)
Whenever an application for development requests relief pursuant to Subsection K(1), (2), (3) or (4) of this section, the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by 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 and N.J.S.A. 40:55D-1 et seq. Failure of the Board of Adjustment to act within the period described shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the Board of Adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval herein required and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
(2)
Whenever review or approval of the application by the Monmouth County
Planning Board is required by N.J.S.A. 40:27-6.3 (County Planning
Board Law), in the case of a subdivision, or N.J.S.A. 40:27-6.6, in
the case of a site plan, the Board of Adjustment shall condition any
approval that it grants upon timely receipt of a favorable report
on the application by the County Planning Board or approval by the
County Planning Board by its failure to report thereon within the
required time.
N.
Expiration of variance. Any variance hereafter granted by the Board
of Adjustment permitting the erection or alteration of any structure
or structures, or permitting a specified use of any premises shall
expire by limitation unless such construction or alteration shall
have been actually commenced on each and every structure permitted
by said variance, or unless such development has actually been commenced,
within a time period specified by the Board of Adjustment from the
date of publication of the notice of the judgment or determination
of the Board of Adjustment; except, however, that the running of the
period of limitation herein provided shall be tolled from the date
of filing an appeal from the decision of the Board of Adjustment to
the Borough Council, or to a court of competent jurisdiction, until
the termination in any manner of such appeal or proceeding. Where
subdivision or site plan approval is required, the period of time
for commencement of the development specified by the Board of Adjustment
shall be the same as the period of time for which other rights are
conferred upon the applicant by such subdivision or site plan approval
pursuant to the provisions of this chapter.
O.
Continuance of hearing and voting eligibility. A member of the Board
of Adjustment who was absent for 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 hearing
from which he was absent and certifies, in writing, to the Board that
he has read such transcript or listened to such recording.
P.
Annual Zoning Ordinance report. The Board of Adjustment shall, at
least once a year, review its decisions on applications and appeals
for variances and prepare and adopt by resolution a report on its
findings on provisions of this chapter which were the subject of variance
requests and its recommendations for Zoning Ordinance amendment or
revision, if any. The Board of Adjustment shall send copies of the
report and resolution to the governing body and Planning Board.
A.
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 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.
(4)
All actions shall be taken by majority vote of a quorum except as
otherwise required by any provision of N.J.S.A. 40:55D-1 et seq. Failure
of a motion to receive the number of votes required to approve an
application for development pursuant to the exceptional vote requirements
of N.J.S.A. 40:55D-34 and 40:55D-69d shall be deemed an action denying
the application. Nothing herein shall be construed to contravene any
act providing for procedures for governing bodies.
(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
the requirements of the Open Public Meetings Law, N.J.S.A. 10:4-6
et seq.
B.
Minutes. Minutes of every regular or special meeting shall be kept
and shall include the names of the persons appearing and addressing
the Board and of the persons appearing by attorney, the action taken
by the Board, the findings, if any, made by it and reasons therefor.
The minutes shall thereafter be made available for public inspection
during normal business hours at the Board office. 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. Such interested party may be charged a reasonable fee
for reproduction of the minutes in an amount sufficient to cover the
cost of such reproduction.
C.
Hearings.
(1)
Rules. The Planning Board and Zoning Board of Adjustment shall hold
a hearing on each application for development and shall make rules
governing the conduct of hearings before such bodies which rules shall
not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq.
of this chapter.
(2)
Filing of documents. 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 municipal agency. 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)
Oaths. 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 Investigations Law,
N.J.S.A. 2A:67A-1 et seq., shall apply.
(4)
Testimony. 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)
Evidence. Technical rules of evidence shall not be applicable to
the hearing, but the Board may exclude irrelevant, immaterial or unduly
repetitious evidence.
(6)
Records. The municipal agency shall provide for the verbatim recording
of the proceedings by either stenographer, mechanical or electronic
means. The municipal agency shall furnish a duplicate recording, on
request to any interested party, at the party's expense. The municipal
agency, when furnishing a duplicate recording of the proceedings to
an interested party at the party's expense, shall not charge such
interested party more than the maximum permitted in N.J.S.A. 2B:7-4.[1]
[1]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations.
(7)
Absences and continued hearings. A member or alternate member of
a municipal agency who was absent for 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 or her absence
from one or more of the meetings; provided, however, that such Board
member or alternate member has available to him or her the transcript
or recording of all of the hearings from which he or she was absent
and certifies, in writing, to the Board that he or she has read such
transcripts or listened to such recording.
D.
Notice requirements for hearing. Whenever public notice of a hearing
is required on an application for development, the applicant shall
give notice thereof at least 10 days prior to the date of the hearing
in accordance with the following:
(1)
Public notice of a hearing on an application for development shall
be given, except for minor subdivisions pursuant to N.J.S.A. 40:55D-47,
minor site plans or final approval pursuant to N.J.S.A. 40:55D-50,
and provided that public notice shall be given in the event that relief
is requested pursuant to N.J.S.A. 40:55D-60 or 40:55D-76 as part of
an application for development otherwise excepted herein from public
notice. In addition, public notice shall be given by a public entity
seeking to erect an outdoor advertising sign on land owned or controlled
by a public entity as required pursuant N.J.S.A. 40:55D-31 or, if
so provided by ordinance adopted pursuant to Subsection g of N.J.S.A.
40:55D-39, by a private entity seeking to erect an outdoor advertising
sign on public land or on land owned by a private entity.[2]
[2]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations.
(2)
Public notice shall be given by publication in the official newspaper
of the municipality, if there be one, or in a newspaper of general
circulation in the municipality.
(3)
Notice of a hearing requiring public notice pursuant to this section
shall be given to the owners of all real property as shown on the
current tax duplicate or duplicates located within 200 feet in all
directions of the property which is the subject of such hearing and
whether located within or without the municipality in which the applicant's
land is located. Such notice shall be given by:
(4)
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. 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 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, may be made in the same manner as to a corporation without
further notice to unit owners, co-owners, or homeowners on account
of such common elements or areas.
(5)
Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality, which notice shall be in addition to the notice required to be given pursuant to Subsection D(3) of this section to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.
(6)
Notice shall be given by personal service or certified mail to the
County Planning Board of a hearing on all applications for development
of property adjacent to an existing county road or proposed road shown
on the Official County Map or on the County Master Plan adjoining
other county land or situated within 200 feet of a municipal boundary.
(7)
Notice shall be given by personal service or certified mail to the
Commissioner of the New Jersey Department of Transportation of a hearing
on any application for development of property adjacent to a state
highway.
(8)
Notice shall be given by personal service or certified mail to the
State Planning Commission of any hearing on an application for development
of property which exceeds 150 acres or 500 dwelling units. Such notice
shall include a copy of any maps or documents required to be on file
with the administrative officer pursuant to N.J.S.A. 40:55D-10b.[3]
[3]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations.
(9)
Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan under this act requiring public notice pursuant to Subsection D(1) of this section shall be given:[4]
(a)
In the case of a public utility, cable television company or local
utility which possesses a right-of-way or easement within the municipality
and which has registered with the municipality in accordance with
Section 5 of P.L. 1991, c. 412 (N.J.S.A. 40:55D-12.1), by serving
a copy of the notice on the person whose name appears on the registration
form on behalf of the public utility, cable television company or
local utility or mailing a copy thereof by certified mail to the person
whose name appears on the registration form at the address shown on
that form;
(b)
In the case of a military facility which has registered with the
municipality and which is situated within 3,000 feet in all directions
of the property which is the subject of the hearing, by serving a
copy of the notice on the military facility commander whose name appears
on the registration form or mailing a copy thereof by certified mail
to the military facility commander at the address shown on that form.
[4]
Editor's Note: Added at time of codification of the Planning
and Development Regulations.
(10)
The applicant shall file an affidavit of proof of service with
the Board holding the hearing on the application for development.
(11)
Any notice made by certified mail as hereinabove required shall
be deemed to be complete upon mailing in accordance with the provisions
of N.J.S.A. 40:55D-14.
(12)
Form of notice. All notices required to be given pursuant to
the terms of this chapter shall state the date, time and place of
the hearing, the nature of the matters to be considered and 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 Borough Tax Assessor's office and the location and
times at which any maps and documents for which approval is sought
are available for public inspection as required by law.
(13)
Notice pursuant to Subsection D(5), (6), (7), (8) and (9) of this section shall not be deemed to be required, unless public notice pursuant to Subsection D(1) and (2) of this section and notice pursuant to Subsection D(3) and (4) of this section are required.[5]
[5]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations.
E.
Upon the written request of an applicant, the administrative officer of a municipality shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to Subsection D of this section. In addition, the administrative officer shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to Subsection D(9) of this section. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner, to any public utility, cable television company, or local utility or to any military facility commander not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name or $10, whichever is greater, may be charged for such list.[6]
[6]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations.
F.
Decisions.
(1)
The municipal agency (Planning Board, Board of Adjustment or Borough Council) shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through 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 municipal agency on the application for development; or a memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution; 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 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 municipal agency and not to be an action of the municipal agency; 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 Subsection F(2) and (3) below of this section (N.J.S.A. 40:55D-10). If the municipal agency 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 municipal agency 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. Failure of a motion to approve an application for development to receive the number of votes required for approval shall be deemed an action denying the application. The municipal agency may provide such written decision and findings and conclusions either on the date of the meeting at which the municipal agency takes action to grant or deny approval or, if the meeting at which such action is taken occurs within the final 45 days of the applicable time period for rendering a decision on the application for development, within 45 days of such meeting by the adoption of a resolution of memorialization setting forth the decision and the findings and conclusions of the municipal agency thereon. Any action resulting from the failure of a motion to approve an application shall be memorialized by resolution as provided above, notwithstanding the time at which such action occurs within the applicable time period for rendering a decision on the application. The adoption of a resolution of memorialization pursuant to this subsection shall not be construed to alter the applicable time period for rendering a decision on the application for development. Such resolution shall be adopted by a vote of a majority of the members of the municipal agency who voted for the action previously taken, and no other member shall vote thereon. The vote on such resolution shall be deemed to be a memorialization of an action of the municipal agency and not to be an action of the municipal agency, except that failure to adopt such a resolution within the forty-five-day period shall result in the approval of the application for development, notwithstanding any prior action taken thereon. Whenever a resolution of memorialization is adopted in accordance with this subsection, the date of such adoption shall constitute the date of the decision for purposes of the mailings, filings and publication required by Subsection F(2) and (3) of this section.
(2)
A copy of the decision shall be mailed by the administrative officer
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 in an amount sufficient
to cover the cost of such mailing. A copy of the decision shall also
be filed by the municipal agency in the office of the administrative
officer. The administrative officer shall make a copy of such filed
decision available to any interested party for a reasonable fee in
an amount sufficient to cover the cost of such copy and available
for public inspection at his office during reasonable hours.
(3)
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, and proof of publication shall be submitted
to the administrative officer. The period of time in which an appeal
of the decision may be made shall run from the first publication of
the decision.
(4)
Such notice, as required by Subsection F(3) of this section, shall be published within 30 days of the date of decision or 20 days of the date of mailing of a copy of the decision by the administrative officer, whichever is later, or within such other appropriate period as may be determined by the municipal agency at the time of decision and, thereafter, from time to time, extended for proper cause shown by the applicant.
(5)
Failure of an applicant to publish as herein required shall render
any approvals null and void.
G.
Conditional approvals.
(1)
In the event that a developer submits an application for development
proposing a development that is barred or prevented, directly or indirectly,
by legal action instituted by any state agency, political subdivision
or other party to protect the public health and welfare or by a directive
or order issued by any state agency, political subdivision or court
of competent jurisdiction to protect the public health and welfare,
the municipal agency shall process such application for development
in accordance with the provisions of N.J.S.A. 40:55D-1 et seq. and
this chapter, and, if such application for development complies with
the provisions of this chapter, the municipal agency shall approve
such application conditioned on removal of such legal barrier to development.
(2)
In the event that development proposed by an application for development
requires an approval of a governmental agency other than the municipal
agency, the municipal agency shall, in appropriate instances, condition
its approval upon the subsequent approval of such governmental agency,
provided that the municipal agency shall make a decision on any application
for development within the time period provided in this chapter and
N.J.S.A. 40:55D-1 et seq. or within an extension of such period as
has been agreed to by the applicant, unless the municipal agency is
prevented or relieved from so acting by the operation of law.
(3)
Whenever review or approval of the application by the County Planning
Board is required by N.J.S.A. 40:27-6.3, in the case of a subdivision,
or N.J.S.A. 40:27-6.6, in the case of a site plan, the municipal agency
shall condition any approval that it grants upon timely receipt of
a favorable report on the application by the County Planning Board
or approval by the County Planning Board by its failure to report
thereon within the required time period.
(4)
The municipal agency may impose such other conditions, including but not limited to those enumerated in Article VI of this chapter, as it deems appropriate.
(5)
In all cases, the municipal agency shall include a condition of approval
setting forth the time within which all conditions of approval must
be satisfied by the applicant. Failure of the applicant to meet all
conditions of approval within the time specified or within such extensions
thereof as the municipal agency may, from time to time, grant upon
the request of the applicant shall render any approvals null and void.
H.
Tolling of running of period of approval. In the event that, during
the period of approval heretofore or hereafter granted to an application
for development, the developer is barred or prevented, directly or
indirectly, from proceeding with the development otherwise permitted
under such approval by a legal action instituted by any state agency,
political subdivision or other party to protect the public health
and welfare or by a directive or order issued by any state agency,
political subdivision or court of competent jurisdiction to protect
the public health or welfare and the developer is otherwise ready,
willing and able to proceed with said development, the running of
the period of approval shall be suspended for the period of time said
legal action is pending or such directive or order is in effect.
I.
Payment of taxes and water and sewer charges. Pursuant to the provisions
of N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-65, every application for
development submitted to the Planning Board or to the Zoning Board
of Adjustment shall be accompanied by proof that no taxes or water
and sewer charges or other assessments for local improvements are
due or delinquent on the property which is the subject of such application;
or, if it is shown that taxes or water and sewer charges or other
assessments are delinquent on said property, any approvals or other
relief granted by either Board shall be conditioned upon either the
prompt payment of such taxes or assessments or the making of adequate
provision for the payment thereof in such manner that the municipality
will be adequately protected.
J.
Certification of complete application for development; certification
time limits.
(1)
An application for development shall be complete for purposes of
commencing the applicable time period for action by a municipal agency
when so certified by the municipal agency or its authorized committee
or designee. In the event that the administrative officer, agency,
committee or designee does not certify the application to be complete
within 45 days of the date of its submission, the application shall
be deemed complete upon expiration of the forty-five-day period for
purposes of commencing the applicable time period, unless:
(a)
The application lacks information indicated on a checklist adopted
by ordinance and provided to the applicant; and
(b)
The municipal agency or its authorized committee or designee
has notified the applicant, in writing, of the deficiencies in the
application within 45 days of submission of the application.
(2)
The applicant may request that one or more of the submission requirements
be waived in the event the agency or its authorized committee shall
grant or deny the request within 45 days. Nothing herein shall be
construed as diminishing the applicant's obligation to prove in the
application process that he is entitled to approval of the application.
The municipal agency may subsequently require correction of any information
found to be an error and submission of additional information not
specified in this chapter or any revisions in the accompanying documents,
as are reasonably necessary to make an informed decision as to whether
the requirements necessary for approval of the application for development
have been met. The application shall not be deemed incomplete for
lack of any such information of any revisions in the accompanying
documents so required by the municipal agency.
[Amended by Ord. No. 1987-8; Ord. No. 1997-28; Ord. No. 2003-10]
A.
Application fees.
(1)
Nonrefundable application fees. The developer shall, at the time
of filing an application, pay a nonrefundable fee to the Borough of
Red Bank by cash, certified check or bank draft. The fee to be paid
shall be the sum of the fees for the component elements of the plat.
Proposals requiring a combination of approvals, such as subdivision,
site plan, and/or variance, shall pay a fee equal to the sum of the
fee for each element.
[Amended 5-11-2009 by Ord. No. 2009-15]
(e)
Application fee: major site plan approval:
[1]
Each preliminary submission: $350.
[2]
Preliminary approval:
[a]
Residential, including hotel, motel, multifamily,
planned residential and community residence, but not including sheltered
care, nursing homes, or other medical/institutional uses, the sum
of:
[i]
For each new dwelling unit, remodeled dwelling
unit, parking space, reconstructed or repaved parking space: $50.
[ii]
For each ground sign eight feet or greater in
height: $150.
[iii]
Other uses: the sum of $300, plus:
[A]
For each full 1,000 square feet of lot area: plus
$50.
[B]
For each full 1,000 square feet of proposed new
gross floor area: plus $50.
[C]
For each proposed new or additional parking space:
plus $40.
|
NOTE: The fee for structured parking will be calculated
on the basis of spaces (ii) or floor area (iii), whichever is greater.
|
[D]
For each full 1,000 square feet of remodeled or
gross floor area: plus $50.
[E]
For each reconstructed, resurfaced or improved
existing paved parking space: plus $30.
[F]
For each ground sign eight feet or greater in height:
$200.
[3]
Final approval: 50% of the fees for preliminary approval enumerated
above.
(f)
(h)
Public hearing for those development applications which require public notice or hearing pursuant to § 490-9D of this chapter: $100.
(l)
Requests for administrative approval of changes: $250.
(2)
Escrow funds required to be deposited with the Borough toward anticipated
expenses for professional services to review applications for development,
to review and prepare documents and to inspect developments under
construction.
(a)
General.
[1]
In addition to the submission of nonrefundable application filing
fees, as set forth hereinbefore, development applications which meet
the criteria established herein shall be accompanied by a deposit
of escrow funds in accordance with the provisions of this section.
[2]
Said escrow funds shall be utilized to cover the cost to the
Borough of professional services rendered to the Borough for review
of applications for development; review and preparation of documents;
inspections of developments under construction; and review by outside
consultants when an application is of a nature beyond the scope of
the expertise of the professionals normally utilized by the Borough.
Professional fees and salaries incurred in connection with the review
of an application, plans, consultations, site inspections, written
reports, resolution preparation, meeting attendance, general preparation,
research, testimony, and other work performed by the Board Planner,
Attorney, Borough Engineer, consulting engineer, Health Officer, and
any other professional consulting services, such as a professional
traffic consultant, may be required due to the nature of the application.
Escrow funds deposited with the Borough as provided for in this subsection
shall not be utilized to pay inspection costs required during the
construction process.
(b)
Escrow amounts. Escrow funds in the amounts specified herein
shall be required relative to the following applications:
[Amended 4-24-2006 by Ord. No. 2006-21; 5-11-2009 by Ord. No.
2009-15]
[1]
All applications for development: $500.
[2]
Sketch plat for major subdivision, minor subdivision, preliminary
major subdivision approval for residential use:
|
Escrow Amount
| ||
|---|---|---|
|
1 to 2 lots or units
|
$3,000
| |
|
3 to 10 lots or units
|
$4,000
| |
|
11 to 25 lots or units
|
$5,000
| |
|
26 to 50 lots or units
|
$6,000
| |
|
51 to 100 lots or units
|
$10,000
| |
|
In excess of 100 lots or units
|
$30,000
|
[3]
Final major subdivision approval and final site plan approval
for residential use:
|
Escrow Amount
| ||
|---|---|---|
|
1 to 10 lots or units
|
$1,500
| |
|
11 to 25 lots or units
|
$2,000
| |
|
26 to 50 lots or units
|
$3,000
| |
|
51 to 100 lots or units
|
$4,000
| |
|
In excess of 100 lots or units
|
$5,000
|
[4]
Nonresidential preliminary site plan approval inclusive of minor
site plan:
|
Escrow Amount
| ||
|---|---|---|
|
Less than 1,000 square feet of building area
|
$1,500
| |
|
Less than 10,000 square feet of building area
|
$3,500
| |
|
10,001 to 50,000 square feet of building area
|
$6,000
| |
|
50,001 to 100,000 square feet of building area
|
$9,000
| |
|
In excess of 100,000 square feet of building area
|
$12,000
|
[5]
Nonresidential final site plan approval: 1/3 of the original
escrow fee paid at the time of preliminary plan application.
[6]
Any application having more than one of the above categories
shall deposit cumulative amounts.
[7]
Requests for extensions of time to commence development or file
subdivision maps: $200.
[8]
Review of performance and maintenance guarantees. If a performance
or maintenance guarantee or bond is required, $350 for review and
preparation of resolutions accepting and releasing of same by the
Borough Attorney.
[9]
Developer's agreements. If a developer's agreement is required
by the Planning Board or Zoning Board of Adjustment, $3,500 for legal
fees for the review of pertinent documents, meeting attendance, drafting
and preparation of the developer's agreement and resolutions implementing
same.
[10]
Applications requiring grading plan review: $500.
[11]
An additional reasonable escrow shall be required
for sites requiring extraordinary review based upon the scale and
complexity of the proposed development. For example, traffic-intensive
or stormwater-intensive sites shall require additional reasonable
escrow. This additional escrow shall be established by the administrative
officer and Borough Engineer after consultation with the reviewing
professionals.
(c)
Procedural requirements.
[1]
An applicant appearing initially before the Planning Board or
Zoning Board of Adjustment shall deposit all escrow funds called for
in the within section before said appearance. No conference, meeting
or hearing with the applicant shall be held by the said Boards or
any committees or professionals until all escrow funds and required
fees have been deposited. The escrow sums must be in the form of cash,
certified or bank cashier's check or money order. All deposits of
escrow funds shall be made to the Borough administrative official
and payable to the Borough of Red Bank.
[2]
Additional escrow funds may be required of the applicant when
the escrow has been depleted to 25% of the original escrow amount.
The Chief Financial Officer shall notify the Director of Planning
and Zoning when escrow funds have been depleted to the aforementioned
amount. The Board Secretary shall provide the applicant with a notice
of insufficient escrow or deposit balance. In order for work to continue
on the development or the application, the applicant shall, within
a twenty-one-day period from date of notification, post a deposit
to the account in an amount to be agreed upon by the Borough and the
applicant. In the interim, any required health and safety inspections
shall be made and charged back against the replenishment of funds.[1]
[1]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations.
[3]
Deposits received from any developer pursuant to this subsection
shall be deposited in a banking institution or savings-and-loan association
in this state insured by an agency of the federal government, or in
any other fund or depository approved for such deposits by the state,
in an account bearing interest at the minimum rate currently paid
by the institution or depository on time or savings deposits. The
Borough shall notify the applicant in writing of the name and address
of the institution or depository in which the deposit is made and
the amount of the deposit. Escrow account deposits shall be placed
in an interest-bearing account, and the same shall be administered
in accordance with the requirements of N.J.S.A. 40:55D-53.1.
[4]
The Chief Financial Officer of the Borough shall make all of
the payments to professionals for services rendered to the Borough
or approving authority for review of applications for development,
review and preparation of documents, inspection of improvements or
other purposes under the provisions of the Municipal Land Use Law,
N.J.S.A. 40:55D-1 et seq. Such fees or charges shall be based upon
a schedule established by resolution or resolutions as adopted from
time to time by the governing body for professional services.
[5]
All disbursements to consulting professionals, Borough professionals
and Borough employed professionals for services involved in processing
an application which required escrow account deposits shall be charged
against the escrow account.
[6]
Each payment charged to the escrow deposit for review of the
applications, review and preparation of documents and inspection of
improvements shall be pursuant to a voucher from the professional.
Said voucher shall identify the personnel performing the service,
the date, the services performed, the hours spent to not greater than
one-quarter-hour increments, the hourly rate and the expenses incurred.
All professionals shall submit vouchers to the Chief Financial Officer
of the Borough on a monthly basis and in accordance with schedules
and procedures established by the Chief Financial Officer of the Borough.
[7]
If the services are provided by a Borough employee, the employee
shall prepare and submit to the Chief Financial Officer a statement
containing the same information as required on the voucher, on a monthly
basis.
[8]
The professional shall send an informational copy of all vouchers
or statements submitted to the Chief Financial Officer of the Borough
simultaneously to the applicant.
[9]
The Chief Financial Officer shall prepare and send to the applicant
a statement which shall include an accounting of funds listing all
deposits, interest earnings, disbursements, and the cumulative balance
of the escrow account. This information shall be provided on a quarterly
basis if monthly charges are $1,000 or less or on a monthly basis
if monthly charges exceed $1,000.
[10]
The only costs that shall be added to any such
charges shall be actual out-of-pocket expenses of any such professionals
or consultants, including normal and typical expenses incurred in
processing applications and inspecting improvements. The Borough shall
not bill the applicant or charge an escrow account or deposit for
any Borough clerical or administrative functions, overhead expenses,
meeting room charges, or any other costs and expenses, except as provided
for in this chapter, nor shall a Borough professional add any such
charges to his bill.
[11]
A professional shall not review items which are
subject to approval by any state agency and not under municipal jurisdiction
except to the extent that consultation with a state agency is necessary
due to the effect of state approval on the subdivision or site plan.
[12]
All professional charges for review of an application
for development, review and preparation of documents, or inspection
of improvements shall be reasonable and necessary, given the status
and progress of the application or construction. Review fees shall
be charged only in connection with an application for development
presently pending before the approving authority or upon review of
compliance with conditions of approval, or review of requests for
modifications or amendment made by the applicant.
[13]
If the Borough retains a different professional
or consultant in the place of the professional originally responsible
for development application review or inspection of improvements,
the Borough shall be responsible for all time and expenses of the
new professional to become familiar with the application or project
and shall not bill the applicant or charge the deposit or the escrow
account for any such services.
[14]
If the salary, staff support and overhead for
a Borough professional are provided by the municipality, the charge
shall not exceed 200% of the sum of the product resulting from multiplying
the hourly base salary of the professional by the number of hours
spent by the respective professional upon review of the application
for development or inspection of the developer's improvements, as
the case may be. For other professionals, the charge shall be at the
same rate as all other work of the same nature by the professional
for the municipality when fees are not reimbursed or otherwise imposed
on applicants or developers.
(d)
Inspection fees.
[1]
Inspection fees shall be charged only for actual work shown
on a subdivision or site plan required by the Borough. Professionals
inspecting improvements under construction shall charge only for inspections
that are reasonably necessary to check the progress and quality of
the work, and such inspections shall be reasonably based on the approved
development plans and documents.
[2]
The developer shall be required to deposit funds into an escrow account for the inspection fees pursuant to Subsection C of this section.
[3]
The amount of monies to be deposited with the Borough shall be as set forth in Subsection B of this section.
[4]
The terms and provisions of this Subsection A(2)(d), Inspection fees, shall be retroactive to January 1, 1997, except that it shall not apply to those inspection fees paid to the Borough under the terms and provisions of a land use developer's agreement, if any, whereby it was agreed by the developer that said inspection fees would be treated as a flat, nonescrow inspection fee.
(e)
Refund of monies in escrow account. The following closeout and
refund procedure shall apply to all deposits and escrow accounts established
under the provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1
et seq., and shall commence after the Borough has granted final approval
and signed the subdivision plat or site plan, in the case of application
review escrows and deposits, or after the improvements have been approved,
in the case of improvement inspection escrows and deposits, and the
Borough has further determined that there is no longer any need to
retain any escrow account:
[1]
The applicant shall send written notice by certified mail to
the Director, Planning and Zoning, as well as to the relevant Borough
professional, that the application or the improvements, as the case
may be, are completed.[2]
[2]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations.
[2]
After receipt of such notice, the professional shall render
a final bill to the Chief Financial Officer within 30 days and shall
send a copy simultaneously to the applicant.
[3]
The Chief Financial Officer shall render a written final accounting
to the applicant on the uses to which the escrow account deposit was
put within 45 days after the receipt of the final bill.
[4]
Any balances remaining in the deposit or escrow account, including
interest in accordance with the requirements of N.J.S.A. 40:55D-53.1,
shall be refunded to the developer along with the final accounting.
[5]
In the event that an applicant requests a refund of any balances
remaining in a deposit or escrow account and it is necessary for the
Borough to provide additional professional services or inspection
services relating to that development application, it will be necessary
for developer to post a new deposit or escrow amount pursuant to this
chapter as if it were a new development application.
[6]
The Borough shall not be required to refund an amount of interest
paid on a deposit which does not exceed $100 for the year. If the
amount of interest exceeds $100, that entire amount shall belong to
the developer and shall be refunded to him by the Borough annually
or at the time the deposit is repaid or applied to the purposes for
which it was deposited, as the case may be, except that the Borough
may retain for administrative expenses a sum equivalent to not more
than 33 1/3% of that entire amount, which shall be in lieu of
all other administrative and custodial expenses pertaining to the
escrow account.
(f)
Dispute of charges.
[1]
An applicant shall notify, in writing, the Borough Council,
with copies to the Chief Financial Officer, the approving authority
and the professional, whenever the applicant disputes the charges
made by a professional for services rendered to the Borough in reviewing
applications for development, review and preparation of documents,
inspection of improvements, or other charges made pursuant to the
provisions of P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.).
[2]
The governing body or its designee shall, within a twenty-one-day
period, attempt to remediate any disputed charges. In the event that
the matter is not resolved to the satisfaction of the applicant, the
applicant may appeal, in writing, to the County Construction Board
of Appeals established under Section 9 of P.L. 1975, c. 217 (N.J.S.A.
52:27D-127).
[3]
An applicant filing an appeal shall simultaneously send a copy
to the Borough approving agency and any professional whose charge
is the subject of the appeal.
[4]
Any appeal shall be filed within 45 days from receipt of the
informational copy of the professional's voucher, except that, if
the professional has not supplied the applicant with the informational
copy of the voucher, then the applicant shall file his appeal within
60 days from receipt of the municipal statement of activity against
the deposit or escrow account.
[5]
During the pendency of any appeal, the municipality or approving
authority shall continue to process, hear and decide the application
for development, and to inspect the development in the normal course,
and shall not withhold, delay or deny reviews, inspections, signing
of subdivision plats or site plans, the reduction or the release of
performance or maintenance guarantees, the issuance of construction
permits or certificates of occupancy, or any other approval or permit
because an appeal has been filed or is pending under this subsection.
The Chief Financial Officer of the municipality may pay charges out
of the appropriate escrow account or deposit for which an appeal has
been filed. If a charge is disallowed after payment, the Chief Financial
Officer of the municipality shall reimburse the deposit or escrow
account in the amount of any such disallowed charge or refund the
amount to the applicant. If a charge is disallowed after payment,
the Chief Financial Officer of the municipality shall reimburse the
deposit or escrow amount in the amount of any such disallowed charge
or refund the amount to the applicant. If a charge is disallowed after
payment to a professional or consultant who is not an employee of
the municipality, the professional or consultant shall reimburse the
municipality in the amount of any such disallowed charge.
B.
Inspection fees.
[Amended 4-24-2019 by Ord. No. 2019-15]
C.
Additional inspection fee escrow for excess Borough expenses.
(1)
If the municipal agency determines that a proposed development involves
unusual or complicated aspects which could result in expenses to the
Borough in excess of the inspection fees set forth above, the municipal
agency may, as a condition of final approval, require the developer
to provide an additional escrow deposit. Expenses in excess of the
normal inspection fees may be deducted from the escrow deposit. Any
balance shall be returned to the applicant upon release of performance
guarantees and/or issuance of a final certificate of occupancy. In
determining the amount of any escrow required, the municipal agency
may consider the duration and size of the project; unusual design
aspects; the degree and extent of municipal inspection required; and
the extent of conformity to normal municipal design standards.
(2)
For those developments for which the reasonably anticipated fees
are less than $10,000, fees may, at the option of the developer, be
paid in two installments. The initial amount deposited by a developer
shall be 50% of the reasonably anticipated fees. When the balance
on deposit drops to 10% of the reasonably anticipated fees because
the amount deposited by the developer has been reduced by the amount
paid to the Municipal Engineer for inspection, the developer shall
deposit the remaining 50% of the anticipated inspection fees. For
those developments for which the reasonably anticipated fees are $10,000
or greater, fees may, at the option of the developer, be paid in four
installments. The initial amount deposited by a developer shall be
25% of the reasonably anticipated fees. When the balance on deposit
drops to 10% of the reasonably anticipated fees because the amount
deposited by the developer has been reduced by the amount paid to
the Municipal Engineer for inspection, the developer shall make additional
deposits of 25% of the reasonably anticipated fees. The Municipal
Engineer shall not perform any inspection if sufficient funds to pay
for those inspections are not on deposit.
D.
Easements and other rights in Borough-owned real property.
[Added 10-23-2006 by Ord. No. 2006-50; amended 5-11-2009 by Ord. No.
2009-15]
(1)
Except as otherwise permitted by the Local Lands and Building Law,
N.J.S.A. 40A:12-1 et seq., the following minimum prices shall be established
for easements, licenses, and any other encroachments upon or encumbrances
of Borough-owned lands or rights-of-way:
(2)
The Borough shall have the right to increase these minimum bids,
at its discretion, upon a finding that special circumstances exist
warranting an increase in the aforementioned minimum bids.
(3)
Nothing in this section shall otherwise restrict, or limit, the Borough
from exercising any other rights or powers granted to it by the Local
Lands and Buildings Law, N.J.S.A. 40A:12-1 et seq.
E.
Revised plats. Any proposed revisions to a plat, including all supporting
maps and documents, previously approved by the Planning Board or Board
of Adjustment, which approval is still in effect, shall require submission
of a revised plat and payment of fees in accordance with the following:
(1)
Where changes in the plat are requested by the municipal agency or
Borough Engineer, no fees need be paid, and only sufficient copies
of the plat incorporating the changes as may be necessary for distribution
need be submitted.
(2)
Where there are only minor changes in the plat proposed by the applicant
or required by another governmental agency, where approval was a condition
of the Planning Board or Board of Adjustment approval, which do not
involve any additional building or parking or significant change in
the design of the site or subdivision, an application fee of $350
will be required along with sufficient copies of the plat incorporating
the changes as may be necessary for distribution.
[Amended 5-11-2009 by Ord. No. 2009-15]
(3)
Where there are changes in the plat proposed by the applicant, or
required by another governmental agency whose approval was a condition
of the municipal agency approval, which involve additional building
or parking or a significant change in the design of the site or subdivision,
an application fee equal to 1/2 the fee required for the initial submission
will be required along with sufficient copies of the plat incorporating
the changes as may be necessary for distribution.
(4)
Where the proposed changes involve a change in use and/or major alteration
of the design concepts of the plat approved by the municipal agency,
it shall be considered a new application and shall require the full
payment of fees as set forth in this section for new applications
for development.
(5)
Where revisions in the plat only involve additional information required
as a condition of a previous approval, no additional fees shall be
required.
G.
Tax Map revision fees.
(1)
When an application for development requires revisions to the Borough's
Tax Maps, which may include costs in regard to reviewing deeds and
revising said maps in addition to costs incurred by the Borough Assessor's
office in establishing additional line items, the following fees will
be paid prior to or as a condition of final approval or issuance of
a development permit:
|
Number of Lots or Units
|
Tax Map Revision Fee
|
|---|---|
|
Less than 20
|
$60/lot or unit ($200 minimum)
|
|
20 but less than 100
|
$1,200, plus $45/lot or unit in excess of 20
|
|
100 but less than 200
|
$4,800, plus $35/lot or unit in excess of 100
|
|
200 but less than 400
|
$8,300, plus $30/lot or unit in excess of 200
|
(2)
Where an applicant sells or leases property necessitating subsequent
revisions to the Borough's Tax Maps, the applicant or present owner
(if different from the applicant) shall be responsible for additional
Tax Map revisions. Subsequent fees shall be the same as above and
paid prior to the issuance of a certificate of occupancy for each
new unit.
H.
Application for a certificate of appropriateness from the Historic
Preservation Commission: $50.
[Added 6-13-2018 by Ord.
No. 2018-15]
I.
Development
impact fees.
[Added 8-18-2021 by Ord. No. 2021-15]
(1)
The purpose of this article is to establish regulations pursuant
to which a developer, as a condition for approval of a subdivision
and/or site plan, shall pay a pro rata share of the cost of providing
reasonable and necessary street improvements and water, sewerage and
drainage facilities, and easements therefor, and provide for open
space and park improvements, located off tract but necessitated or
required by construction or improvements within the subdivision or
development.
(2)
To the fullest extent permitted by New Jersey law, presently or as
may be amended and supplemented from time to time, and whenever the
Borough can fairly and reasonably establish, based upon appropriate
traffic and utility service analyses, plans or studies and open space
or park improvement plans, the proportionate or pro rata amount of
the cost of the aforementioned facilities that shall be borne by each
developer or owner within a related and common area as provided for
herein, the developer or owner shall pay said cost as a condition
of approval up to the following amounts:
(a)
Each square foot of new construction of warehouse space shall
be assessed an impact fee of $3.25.
(b)
Each square foot of new construction of retail, commercial and/or
other industrial space shall be assessed an impact fee of $4.25.
(c)
Each square foot of new construction of residential space shall
be assessed an impact fee of $3.
(d)
Construction of new tanks above or below grade of any gallon
size shall be assessed an impact fee of $0.10 per gallon. Single-family
and multifamily homes shall be exempt.
(3)
The foregoing amounts shall apply to each square foot of lot coverage
only and shall not be required for additions to existing owner-occupied
residential dwellings unless said addition increases the total square
footage of lot coverage by the dwelling by more than 50%.
(4)
Where a developer or owner pays under protest the amount determined
to be his/her/its pro rata share as provided for herein, he/she/it
shall institute legal action within one year of such payment in order
to preserve the right to a judicial determination as to the fairness
and reasonableness of such amount.
(5)
The provisions of this article notwithstanding, nothing herein shall
prevent a developer or owner from voluntarily agreeing to pay, and
the Borough agreeing to accept, an amount, either by way of direct
contribution or in-kind services, that the developer or owner agrees
reflects the pro rata or proportionate share of the cost of providing
reasonable and necessary off-tract improvements or facilities required
by the construction or improvements to be approved pursuant to a respective
development application. In such a case, the Borough and developer
or owner may enter into a developer's agreement that provides
for said direct payment or in-kind services in lieu of any contribution
provided for pursuant to the provisions of this article. In addition,
the Borough may waive the requirements of this article for any duly
authorized redevelopment project.
The duty of administering and enforcing the provisions of this
chapter is hereby conferred upon the administrative officer or his
designee, who shall have such powers as are conferred by this chapter
and as reasonably may be implied. The officer shall be appointed by
the Borough Council. In no case shall a development permit be granted
for a subdivision or the construction of or alteration of any building
or site where the proposed construction, alteration or use thereof
would be in violation of any provisions of this chapter. It shall
be the duty of the administrative officer or his designee to cause
any building, plans or premises to be inspected or examined and to
order in writing the remedying of any conditions found to exist in
violation of this chapter, and the officer or his designee shall have
the right to enter any building or premises during the daytime, or
other normal business hours of the premises, in the course of performing
these duties.
[Amended by Ord. No. 1989-10]
A.
Development permit.
(1)
Development permits shall hereafter be secured from the administrative
officer prior to:
(a)
Filing of (or recording a deed of) a subdivision application
or resubdivision of any land;
(b)
Application for and/or issuance of any construction permit except
a permit for minor work (as defined by N.J.A.C. 5:23-2.17A);
(c)
The erection, construction, alteration, repair, remodeling,
conversion, removal or destruction of any building or structure;
(d)
Application for and/or issuance of any permit for a new or expanded
or relocated sign;
(e)
Application for and/or issuance of any permit for erection of
a fence;
(f)
Any change in use or occupancy (as herein defined) of any building,
structure or land;
(g)
Any alteration in the natural condition of any parcel of land;
(h)
Any use of any portion of any parcel of land for any activity
regulated by this chapter;
(i)
The construction of any site improvement either above or below
ground;
(j)
The issuance of any certificate of occupancy where no building
permit was previously required.
(k)
Any leasing of parking spaces to off-site uses.
[Added 7-18-2018 by Ord.
No. 2018-19]
(2)
Prior to issuance of a development permit, the applicant shall have,
where applicable, secured other required permits, including, but not
limited to:
(a)
Access permit from the New Jersey Department of Transportation
and/or Monmouth County Engineering Department.
(b)
Drainage permits from the New Jersey Department of Transportation.
(c)
Stream encroachment permit from the New Jersey Department of
Environmental Protection.
(d)
Coastal Area Facility Review Act (CAFRA) permit from the New
Jersey Department of Environmental Protection.
(e)
Wetlands permit from the New Jersey Department of Environmental
Protection.
(f)
Riparian construction permit from the New Jersey Department
of Environmental Protection.
(g)
Required permits from the United States Army Corps of Engineers
for work within navigable waterways.
(h)
Sewerage and/or industrial waste treatment permit from the New
Jersey Department of Environmental Protection.
(i)
Land disturbance permit from the Freehold Area Soil Conservation
District.
(3)
Prior to the issuance of a development permit, the applicant shall
have secured all approvals required by this chapter and shall have
met any and all conditions of any municipal agency approval.
B.
Certificates as to approval of subdivision of land.
(1)
The prospective purchaser, prospective mortgagee, or any other person
interested in any land which forms part of a subdivision, or which
formed part of such a subdivision three years preceding the effective
date of N.J.S.A. 40:55D-1 et seq., may apply in writing to the administrative
officer for issuance of a certificate certifying whether or not such
subdivision has been approved by the Planning Board. Such application
shall contain a diagram showing the location and dimension of the
land to be covered by the certificate and the name and the owner thereof.
(2)
The administrative officer shall make and issue such certificate
within 15 days after the receipt of such written application and the
fees therefor. Said officer shall keep a duplicate copy of each certificate,
consecutively numbered, including a statement of the fee charged,
in a binder as a permanent record of his office.
(3)
Each such certificate shall be designated as "certificate as to approval
of subdivision of land" and shall certify:
(a)
Whether there exists in the Borough a duly established Planning
Board and whether there is an ordinance controlling subdivision of
land adopted under the authority of N.J.S.A. 40:55D-1 et seq.
(b)
Whether the subdivision, as it relates to the land shown in
said application, has been approved by the Planning Board and, if
so, the date of such approval and any extensions and terms thereof,
showing the subdivision of which the lands are a part is a validly
existing subdivision.
(c)
Whether such subdivision, if the same has not been approved,
is statutorily exempt from the requirement of approval as provided
by N.J.S.A. 40:55D-1 et seq.
(4)
The administrative officer shall be entitled to demand and receive
for such certificate issued by him a reasonable fee not in excess
of those provided in N.J.S.A. 54:5-14 and 54:5-15. The fees so collected
by such official shall be paid by him to the municipality.
(5)
Any person who shall acquire for a valuable consideration an interest
in the lands covered by any such certificate of approval of a subdivision
in reliance upon the information therein contained shall hold such
interest free of any right, remedy or action which could be prosecuted
or maintained by the Borough pursuant to the provisions of N.J.S.A.
40:55D-55.
(6)
If the administrative officer designated to issue any such certificate
fails to issue the same within 15 days after receipt of an application
and the fees therefor, any person acquiring an interest in the lands
described in such application shall hold such interest free of any
right, remedy or action which could be prosecuted or maintained by
the Borough pursuant to N.J.S.A. 40:55D-55.
(7)
Any such application addressed to the Borough Clerk shall be deemed
to be addressed to the proper designated officer, and the Borough
shall be bound thereby to the same extent as though the same was addressed
to the designated official.
C.
Building permit. No building or structure shall be erected, restored,
added to, or structurally altered until a permit therefor has been
issued by the Construction Official. All applications for such permits
shall be in accordance with the requirements of the Uniform Construction
Code. No building permit shall be issued unless the applicant shall
have first secured a development permit.
D.
Certificate of occupancy.
(1)
Development permit required. No certificate of occupancy shall be
issued for the use of any building, structure or land unless a development
permit shall have first been issued for the use of such building,
structure or land.
(2)
New uses.
(a)
No building, structure or land shall be occupied or used until
such time as a certificate of occupancy is issued by the Construction
Official.
(b)
Such certificate shall be issued upon application by the owner,
prospective occupant, or purchaser only after the Construction Official
determines that the facts represented on the application are correct
and that the building, structure or use is in conformance with the
provisions of the Uniform Construction Code and other codes and ordinances
affecting construction and occupancy.
(3)
Existing uses at the time of passage of this chapter. Upon written
request from the owner, tenant, occupant, or purchaser under contract,
the Construction Official, after inspection, shall issue an occupancy
permit for a use legally existing at the time this chapter is made
effective, certifying the extent and kind of use and whether any such
existing use conforms with the provisions of this chapter.
(4)
Change of use. Whenever there occurs a change in the occupancy or
use (as herein defined) of a nonresidential building, structure or
land, a new certificate of occupancy shall be applied for, to ensure
compliance with all applicable codes and ordinances. The Construction
Official may issue such certificate if the administrative officer
determines that such change in occupancy or use is not a change in
use as herein defined and determines, therefore, that a development
permit is not required, provided that the applicant has met the requirements
of other applicable regulations.
(5)
Scope of certificate of occupancy. The certificate of occupancy shall
contain sufficient information as to the extent and kind of use or
uses, such that any future investigation of the premises would disclose
the extent to which a use was altered. It shall also indicate whether
such use is a permitted or nonconforming use and the extent to which
the use does not conform to the provisions of this chapter.
(6)
Improvement required. No permanent certificate of occupancy shall
be issued until all required improvements have been installed in accordance
with the provisions of this chapter.
E.
Soil erosion and sediment control plan certification. Where required,
a soil erosion and sediment control plan certification shall be obtained
from the Freehold Area Soil Conservation District prior to subdivision
or the erection of any structure or the alteration of the existing
grade on any lot. No such certification shall be valid until a development
permit shall have first been issued for the subdivision, building,
structure or use.
It shall be the duty of the administrative officer to keep a
record of all applications, all actions of the municipal agencies,
all complaints, all violations noted and a record or any action taken
thereon and all development permits issued, together with a notation
of all special conditions involved. He shall file and safely keep
copies of all plans submitted, and the same shall form a part of the
records of his office and shall be available for the use of the Borough
Council and of other officials of the Borough.
A.
In the application and interpretation of this chapter, all provisions
hereof shall be held to be minimum standards or requirements adopted
for the promotion of the public health, safety, convenience and general
welfare of the Borough.
B.
Whenever the requirements of this chapter are at variance with the
requirements of any other lawfully adopted rules, regulations or ordinances,
the most restrictive or that imposing the higher standards shall govern.
Any portions of other ordinances which contain provisions inconsistent with this chapter are hereby repealed to the extent of such inconsistency, except as provided by § 490-28 of this chapter, and except that any building permit, variance, special use permit, occupancy permit or other permit validly issued pursuant to any such ordinance shall remain valid and effective and shall continue to be governed by the terms and conditions of such ordinance.
A.
For any and every violation of the provisions of this chapter, the applicant, subdivider, developer, owner, general agent or contractor of a building or premises where such violation has been committed or shall exist and the owner, general agent, contractor, lessee or tenant of any part of a building or premises in which part such violation has been committed or shall exist and the general agent, architect, building contractor or any other person who commits, takes part or assists in such violation or who maintains any building or premises in which any such violation shall exist shall, for each and every day that violation continues, be subject to the penalties set forth in Chapter 1, Article II, General Penalty.[1]
[1]
Editor's Note: Amended at time of codification of the Planning
and Development Regulations. Additionally, the codification of the
ordinances of the Borough of Red Bank is currently in process. For
the most recent penalty provisions, see Ord. No. 1987-8, as amended
by Ord. No. 2004-38 and Ord. No. 2006-26, on file in the Borough offices.
B.
Prohibited acts.
(1)
It shall be a violation of the provisions of this chapter to:
(a)
Engage in any of the activities referred to in § 490-57 of this chapter prior to issuance of a development permit.
(d)
After approval of a development permit, fail to follow, during
construction, the approved site or subdivision plans and/or observe
any and all conditions of approval contained in any resolution of
the municipal agency.
(e)
Fail to observe the intent of the general objectives or the general standards under the provisions of § 490-104 of this chapter.
(g)
Fail to observe any direction of the administrative officer
or his designee with regard to the suspension of any work not in conformance
with approved plans or the conditions of any resolution of the municipal
agency or of the development permit.
(h)
Fail to observe any direction of the administrative officer
or his designee with regard to the correction, including any time
limits imposed for such correction, of any work not in conformance
with the approved plans or the conditions of any resolution of the
municipal agency or of the development permit.
(i)
After completion of a development, fail to operate and maintain the site in conformance with the approved plans, any condition of resolution of the municipal agency or of the development permit and/or any of the provisions or applicable design standards set forth in Articles V, VII and VIII of this chapter.
(j)
Pave any portion of any lot that is not used as a permitted
and approved driveway or parking area.
[Added 8-21-2019 by Ord.
No. 2019-35]
(2)
The above shall not be construed to be an exhaustive list of those
activities or actions or omissions which constitute violations of
this chapter. Other activities prohibited by or failure to engage
in other activities required by this chapter shall also be considered
violations.
C.
If, before final subdivision approval has been granted, any person
transfers or sells or agrees to transfer or sell, except pursuant
to an agreement expressly conditioned on final subdivision approval,
as owner or agent, any land which forms a part of a subdivision for
which municipal approval is required by this chapter pursuant to N.J.S.A.
40:55D-1 et seq., such person shall be subject to a penalty not to
exceed $1,000, and each lot disposition so made may be deemed a separate
violation.
D.
Civil action.
(2)
In any such action, the transferee, purchaser or grantee shall be
entitled to a lien upon the portion of the land from which the subdivision
was made that remains in the possession of the developer or his assigns
or successors, to secure the return of any deposits made or purchase
price paid, and also a reasonable search fee, survey price paid, and
also a reasonable search fee, survey expense and title closing expense,
if any. Any such action must be brought within two years after the
date of the recording of the instrument of transfer, sale or conveyance
of said land or within six years, if unrecorded.
E.
If, after final approval, it is discovered that there was any misrepresentation
of any statements or proofs contained in any plat or in any application
for approval or in any representations made to induce approval, the
municipal agency or the Borough Council may, in addition to such other
sanctions as are available in the law, revoke the approval of any
plat and proceed as if final approval has not been obtained.
F.
If the developer or agent of the developer shall, after notification by certified mail from the Engineer or the administrative officer or his designee to cease the construction of improvements or cease the use of or lack of use of the site maintenance methods and procedures which may result in hazards to life, health or property, continue to carry on the activities specifically included in cessation order(s) from the Engineer or the administrative officer or his designee, then any such developer or agent of such developer shall be subject to the penalties set forth in Chapter 1, Article II, General Penalty.[3] Each and every day that a developer or agent of a developer
operates in violation of this chapter after issuance of a cessation
order by the Engineer or the administrative officer or his designee
shall be considered a separate and specific violation.
[Amended 12-5-2012 by Ord. No. 2012-23]
[3]
Editor's Note: The codification of the ordinances of the Borough
of Red Bank is currently in process. For the most recent penalty provisions,
see Ord. No. 1987-8, as amended by Ord. No. 2004-38 and Ord. No. 2006-26,
on file in the Borough offices.
All amendments to this chapter and to the Zoning Map, which
forms a part hereof, shall be adopted in accordance with the provisions
of N.J.S.A. 40:55D-1 et seq., as amended and supplemented.
If any section, paragraph, subdivision, clause or provision
of this chapter shall be adjudged invalid, such adjudication shall
apply only to the section, paragraph, subdivision, clause or provision
so adjudged, and the remainder of this chapter shall be deemed valid
and effective.
A.
After the effective date of the ordinance adopting this chapter,
all new applications for development shall be subject to the provisions
of this chapter. Within 45 days of submission of any application for
development, the administrative officer shall notify the developer
in writing if an application for development is found to be incomplete
or it shall be deemed to be properly submitted and constitute a complete
application 45 days after the date of submission. If a developer is
notified that an application for development is incomplete, the administrative
officer shall further notify the developer within 45 days of submission
of all the additional plans and supporting documentation requested
if an application for development is still found to be incomplete,
or it shall be deemed to be properly submitted and constitute a complete
application 45 days after submission of all the additional plans and
supporting documentation requested.
B.
All applications for development filed prior to the effective date
of this chapter may be continued, subject to the following:
(1)
The time limits for approval by the municipal agency set forth within this chapter shall not apply unless the developer shall notify the municipal agency in writing that he desires the application to be considered within such time limits. Such letter of notification from the developer shall constitute the filing of a new application for development subject to the provisions of Subsection A of this section and all other provisions of this chapter.
(2)
If the developer does not notify the municipal agency that he desires
the application for development to be considered within the time limits
set forth in this chapter, such application for development shall
be processed and acted upon pursuant to the procedures heretofore
in effect at the time of such application.
(3)
All approvals granted after the effective date of this chapter shall
confer upon the applicant all the rights set forth in this chapter.
Upon adoption of this chapter, the Borough Clerk shall file
a copy of this chapter with the Monmouth County Planning Board as
required by N.J.S.A. 40:55D-16.
