A.
The Planning Board previously established is hereby continued pursuant
to the Municipal Land Use Law (N.J.S.A. 40:55D-23 et seq.) and shall
consist of nine members of the following four classes:
(1)
Class I: the Mayor, or the Mayor's designee in the absence of the
Mayor.
(2)
Class II: one of the officials of the Borough other than a member
of the governing body, to be appointed by the Mayor.
(3)
Class III: a member of the governing body, to be appointed by it.
(4)
Class IV: six citizens of the Borough, to be appointed by the Mayor.
The members of Class IV 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.
B.
Alternates.
(1)
Two alternate members shall be appointed by the Mayor and shall be
designated at the appointment as "Alternate No. 1" and "Alternate
No. 2." Alternate members shall meet the qualifications of Class IV
members.
(2)
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.
C.
Terms.
(1)
The term of the member composing Class I shall correspond with the
Mayor's official tenure of office, or if the member is the Mayor's
designee in absence of the Mayor, the designee shall serve at the
pleasure of the Mayor during the Mayor's official tenure.
(2)
The terms of the members composing Class II and Class III shall be
for one year or terminate at the completion of their respective terms
of office, whichever occurs first.
(3)
The term of a Class IV member who is also a member of the Board of
Adjustment or Board of Education shall terminate whenever he or she
is no longer a member of such other body or at the completion of his
or her Class IV term, whichever occurs first. The terms of all other
Class IV members shall be four years.
(4)
The terms of 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.
(5)
A vacancy occurring otherwise than by expiration of term shall be
filled by the appointing authority for the unexpired term only. All
terms shall run from January 1 of the year in which the appointment
is made.
D.
Organization.
(1)
The Planning Board shall elect a Chairperson and Vice Chairperson
from the members of Class IV and may select a Secretary, who may or
may not be a member of the Planning Board or a Borough employee, and
create and fill such other offices as established by ordinance.
(2)
The Chairperson shall preside at all meetings and hearings of the
Board, decide all points of order and matters of procedure governing
said meetings or hearings and perform all the duties normally appertaining
to his or her office, as required by law, ordinance, rule or the Board.
His or her designee shall swear all witnesses giving testimony before
the Board.
(3)
The Vice Chairperson shall preside at all Board meetings and hearings
in the absence of or disqualification of the Chairperson.
E.
Attorney. There is hereby created the office of Planning Board Attorney.
The Planning Board may annually appoint and 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.
F.
Experts and staff. The Planning Board may also employ or contract
for the services of experts and other staff and services as it may
deem necessary. The Board shall not, however, exceed, exclusive of
gifts or grants, the amount appropriated by the governing body for
its use.
G.
Powers and duties. The Planning Board shall have the following powers
and duties:
(1)
To make and adopt and from time to time amend a Master Plan for the
physical development of the municipality, considering 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. The Master Plan is to be reviewed, revised
and amended every 10 years from the date of the last update.
(2)
To approve or deny applications for development in accordance with
the provisions of this chapter.
(3)
To approve or deny conditional use applications in accordance with
the provisions of this chapter pursuant to N.J.S.A. 40:55D-67, Conditional
uses; site plan review.
(4)
To prepare and recommend for adoption an Official Map pursuant to
N.J.S.A. 40:55D-32, Establish an Official Map.
(5)
To prepare, when authorized by the governing body, a capital improvements
program pursuant to N.J.S.A. 40:55D-29, Preparation of capital improvement
program.
(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 continuous planning
process.
(8)
To consider and make a report to the governing body, within 35 days
after referral, as to any proposed development regulation submitted
to the Planning Board pursuant to the provisions of N.J.S.A. 40:55D-26a
or 40:55D-26b and also to pass upon other matters specifically referred
to the Planning Board by the governing body pursuant to the provisions
of N.J.S.A. 40-55D-26a or N.J.S.A. 40:55D-26b.
(9)
Whenever the proposed development requires approval pursuant to this
chapter of a subdivision, site plan or conditional use, the Planning
Board shall have the power to grant to the same extent and subject
to the same restrictions as the Board of Adjustment:
(a)
Variances pursuant to N.J.S.A. 40:55D-70c.
(b)
Direction for issuance of a permit for a building or structure
in the bed of a mapped street or public drainage way, flood control
basin or public area reserved on the Official Map.
(c)
Direction pursuant to N.J.S.A. 55D-36 for issuance of a permit
for a building or structure not related to a street.
(10)
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 governing boy or other agencies or officers.
A.
A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A.
40:55D-69 et seq. consisting of seven regular members and two alternates,
all of whom are residents of the Borough of Roselle. Zoning Board
members shall be appointed by the Mayor with the consent of the Council
to serve for terms of two years from January 1 of the year of their
appointment. The terms of the members first appointed shall be so
determined that to the greatest practicable extent the expiration
of such terms shall be distributed evenly over the first four years
after their appointment, provided that the initial term of no member
shall exceed four years. Nothing in this chapter shall, however, be
construed to affect the term of any present member of the Zoning Board
of Adjustment, all of whom shall continue in office until the completion
of the term for which they were appointed.
B.
Conflicts of interest; removal; vacancies. No member may hold any
elective office or position under the municipality. No member of the
Board of Adjustment shall be permitted to act on any matter in which
the member has, either directly or indirectly, any personal or financial
interest. A member may, after public hearing if the member requests
it, be removed by the Council for cause. A vacancy occurring otherwise
than by expiration of term shall be filled for the unexpired term
only.
C.
Officers. The Board of Adjustment shall elect a Chairperson and Vice
Chairperson from its members and shall also select a Secretary, who
may be either a Board member or another municipal employee.
D.
Attorney. There is hereby created the office of Attorney to the Zoning
Board of Adjustment. The Zoning Board of Adjustment may annually appoint
and 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.
E.
Experts and staff. 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.
F.
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. 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.
G.
Powers and duties.
(1)
The powers of the Zoning Board of Adjustment shall be in accordance
with N.J.S.A. 40:55D-70 et seq. and amendments and supplements thereto,
and with the provisions of this chapter.
(2)
It is further the intent of this chapter to confer upon the Zoning
Board of Adjustment as full and complete powers as may lawfully be
conferred upon such Board, including, but not by way of limitation,
the authority, in connection with any case, action or proceeding before
the Board, to interpret and construe the provisions of this chapter,
or any term, clause, sentence or word hereof, and the Zoning Map,
in accordance with the general rules of construction applicable to
legislative enactments.
(3)
The Board may, in appropriate cases and subject to appropriate conditions
and safeguards, grant variances from the terms of this chapter in
accordance with the general or specific rules contained herein, and
with the general rules hereby laid down that equity shall be done
in cases where the strict construction of the provisions of this chapter
would work undue hardship. The powers and duties of the Board having
been delegated to and imposed upon it by statute, the Board shall
in all cases follow the provisions applicable to it in said N.J.S.A.
40:55D-1 et seq. and/or subsequent statutes in such case made and
provided, and it shall from time to time furnish to any person requesting
the same a copy of its rules and information as to whom appeals or
applications may properly be filed with the Board for its decision
thereon.
H.
Appeals and applications.
(1)
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of Chapter 650 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 forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
(2)
Applications addressed to the original jurisdiction of the Board
of Adjustment without prior application to an administrative officer
shall be filed with the Secretary of the Zoning Board of Adjustment.
Three copies of the application shall be filed. At the time of filing
the appeal or application, but in no event less than 10 days prior
to the date set for hearing, the applicant shall also file all plot
plans, maps or other papers required by virtue of any provision of
this chapter or any rule of the Board of Adjustment. The applicant
shall obtain all necessary forms from the Secretary of the Zoning
Board of Adjustment. The Secretary of the Board shall inform the applicant
of the steps to be taken to initiate a proceeding and of the regular
meeting dates of the Board.
(3)
An appeal stays all proceedings in furtherance of the action in respect
to 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 case, 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.
I.
Power to reverse or modify decisions. In exercising the above-mentioned
power, the Board of Adjustment may, in conformity with the provisions
of N.J.S.A. 40:55D or amendments thereto or subsequent statutes applying,
reverse or affirm, wholly or partly, or modify the order, requirement,
decision or determination appealed from, and make such other requirement,
decision or determination appealed from and to that end have all the
powers of the administrative officer from whom the appeal was taken.
J.
Expiration of variance. Any variance from the terms of this chapter
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 permitted use
has actually been commenced within one year from the date of publication
of the notice of the judgment or determination of the Board of Adjustment.
Time limits which have been determined in accordance with the foregoing
may thereafter be extended upon application to the Board of Adjustment,
provided that the application shall be made prior to the expiration
of the time limitations sought to be extended. Upon a showing of good
cause may be the applicant before the Board of Adjustment, the Board
may extend the time limitation by resolution. The running of the period
of time limitation provided shall be tolled from the date of filing
an appeal from the decision of the Board of Adjustment to the court
of competent jurisdiction until the termination of such appeal or
proceeding.
K.
Powers granted by law.
(1)
The Board of Adjustment shall have such powers as are granted by
law 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 a zoning official or agency based on or made in the enforcement
of the Zoning Ordinance.
(b)
Hear and decide requests for interpretation of the map or Zoning
Ordinance or for decisions upon other special questions upon which
such Board is authorized by the Zoning Ordinance to pass.
(c)
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 other extraordinary and exceptional situation
uniquely affecting a piece of property or the structures lawfully
existing thereon, the strict application of any regulation pursuant
to Article 8 of N.J.S.A. 40:55D-1 et seq. would result in peculiar
and exceptional practical difficulties to or exceptional and undue
hardship upon the developer of such property, grant, upon an application
or an appeal relating to such property, a variance from such strict
application of such regulation so as to relieve such difficulties
or hardship.
(d)
Where in an application or appeal relating to a specific piece of property the purposes of N.J.S.A. 40:55D-1 et seq. would be advanced by a deviation from the requirements of the Zoning Ordinance, Chapter 650, and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to this chapter; provided, however, that no variance from those departures enumerated in Subsection K(1)(e) below shall be granted under this subsection; and, provided, further, that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to review a request for a variance pursuant to this chapter.
(e)
In particular cases and for special reasons, grant a variance
to allow departure from zoning regulations 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 pertaining solely to a conditional use, an increase in
the permitted floor area ratio or an increase in the permitted density,
except as applied to the required lot area for a lot or lots for detached
one- or two-dwelling unit buildings, which lot or lots are either
an isolated undersized lot or lots resulting from a minor subdivision.
A variance under this subsection shall be granted only by affirmative
vote of at least five members.
(2)
No variance or other relief may be granted under the provisions of
this section unless such variance or other relief can be granted without
substantial detriment to the public good and will not substantially
impair the intent and purpose of the Zone Plan and Zoning Ordinance.
Any application under any Subsection of this section may be referred
to any appropriate person or agency, including the Planning Board,
for its report, provided that such reference shall not extend the
period of time within which the Zoning Board of Adjustment shall act.
L.
Additional powers. The Zoning Board of Adjustment shall, in addition to the powers specified in Subsection K. above, have power given by law to:
(1)
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.
(2)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a
building or structure not related to a street.
(3)
Grant, to the same extent and subject to the same restrictions as
the Planning Board, subdivision or site plan approval pursuant to
Article 6 of N.J.S.A. 40:55D 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 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 granting
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 Zoning Ordinance. The number of votes of board members required
to grant any such subsequent approval shall be as provided in N.J.S.A.
40:55D-1 et seq. for the approval in question, and the special vote
pursuant to the aforesaid N.J.S.A. 40:55D-70d shall not be required.
M.
Time limit for decision. The Board of Adjustment shall render its
decision not later than 120 days after the date an appeal is taken
from the decision of the administrative officer or not later than
120 days after the date of the submission of a complete application
for development to the Board of Adjustment pursuant to the provisions
of N.J.S.A. 40:55D-72. Failure of the Board to render a decision within
such one-hundred-twenty-day period or within such further time as
may be consented to by the applicant, shall constitute a decision
favorable to the applicant.
A.
Conflicts of interest. No member of the Boards shall act on any matter
in which he or she has, either directly or indirectly, any personal
or financial interest. Whenever any such member shall disqualify himself
or herself from acting on a particular matter, he or she shall not
continue to sit with the Board on the hearing of such matter and not
participate in any discussion or decision relating thereto.
B.
Compensation. All members of the Boards shall serve without compensation.
C.
Rules and regulations. The Boards shall adopt such rules, regulations
and bylaws as may be necessary to carry into effect the provisions
and purposes of the chapter. In the issuance of subpoenas, administration
of oaths and taking of testimony, the provisions of the County and
Municipal Investigations Law (N.J.S.A. 2A:67-1 et seq.) shall apply.
D.
Meetings.
(1)
Each board shall hold regular meetings at the times and places fixed
by its rules. Meetings of each Board shall be scheduled at least once
a month, unless canceled for lack of applications.
(2)
Special meetings may be provided for at the call of the Chairperson
or on the request of four 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.
All actions shall be taken by majority vote of all members present
except as otherwise required by any provisions of the Municipal Land
Use Law (N.J.S.A. 40:55D-1 et seq.). In absence of a quorum, the members
present may adjourn the meeting and the hearing on any motion or petition
to another date by a majority vote of those present. A member of the
Planning Board or 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 or her absence from one or more of the meetings; provided, however,
that such Board 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
transcript or listened to such recording.
(4)
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 Act (N.J.S.A. 10:4-6
et seq.). An executive session for the purpose of discussing and studying
any matters to come before the Board shall not be deemed a regular
or special meeting within the meaning of the Municipal Land Use Law.
E.
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 represented by counsel, 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 office of the Borough Clerk. Any
interested party shall have the right to compel production of the
minutes after they have been approved by the Board for use as evidence
in any legal proceeding concerning the subject matter of such minutes.
Such interested party shall be charged a fee of $0.50 for each page
for reproduction of the minutes.
F.
Hearings.
(1)
Rules. The Boards shall make rules governing the conduct of hearings,
which rules shall not be inconsistent with the provisions of the Municipal
Land Use Law (N.J.S.A. 40:55D-1 et seq.) or of this chapter.
(2)
Oaths. The officer presiding at the hearing or such person as he
or she 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, c. 38, P.L. 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
(3)
Testimony. The testimony of 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.
Witnesses include all interested parties, including members of the
public, regardless of residence, who wish to testify with regard to
an application.
(4)
Evidence. Technical rules of evidence shall not be applicable to
the hearing, but the Boards may exclude irrelevant, immaterial or
unduly repetitious evidence.
(5)
Records. Each Board shall provide for the verbatim recording of the
proceedings by either stenographic, mechanical or electronic means.
The Board shall furnish a transcript or duplicate recording in lieu
thereof on request to any interested party at his or her expense.
The cost of said transcript shall not be in excess of the limits prescribed
in N.J.S.A. 40:55D-10. Said transcript shall be certified in writing
by the transcriber to be accurate.
(6)
Maps and documents. Any maps and documents for which approval is
sought 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 Boards. The applicant may produce other documents,
records or testimony at the hearing to substantiate or clarify or
supplement the previously filed maps and documents.
G.
Notice requirements.
(1)
Public notice. Public notice of a hearing shall be given in the following
cases:
(a)
Application for preliminary approval of a major subdivision.
(b)
Application which requires a variance, whether before the Planning
Board or the Board of Adjustment.
(c)
Application for major site plan approval.
(d)
Application for exception or waiver for signs, fences or number
of parking spaces.
(e)
Variances in the floodplain.
(2)
Public notice procedures.
(a)
Public notice shall be given by publication in the official
newspaper of the Borough at least 10 days prior to the date of the
hearing. Such notices shall be arranged by the Borough.
(b)
Notice shall be given to the owners of all real property as
shown on the current tax duplicate, located in the state and within
200 feet in all directions of the perimeter of the property which
is the subject of such hearing, provided that this requirement shall
be deemed satisfied by notice to the condominium association, in the
case of any unit owner whose unit has a unit above or below it, or
the horizontal property regime, in the case of any co-owner whose
apartment has an apartment above or below it. Notice shall be given
by serving a copy thereof on the property owner as shown on said current
tax duplicate or his agent in charge of the property or by mailing
a copy thereof by certified mail to the property owner at his or her
address as shown on said current tax duplicate.
(c)
Notice to a partnership owner may be made by service upon any
partner. Notice to a corporate owner may be made by service upon its
president, a vice president, a secretary or other person authorized
by appointment or by law to accept service on behalf of the corporation.
Notice to a condominium association, horizontal property regime, community
trust or homeowners' association, because of its ownership of common
elements or areas located within 200 feet of the property which is
the subject of the hearing, 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.
(d)
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 G(2)(b) above to the owners of lands in such adjoining municipality, which are located within 200 feet of the subject premises.
(e)
Notice shall be given by personal service or certified mail
to the County Planning Board of hearings on applications for development
of property adjacent to an existing or proposed road on the Official
County Map or on the County Master Plan, adjoining other county land
or situated within 200 feet of a municipal boundary.
(f)
Notice shall be given by personal service or certified mail
to the Commissioner of Transportation of a hearing on application
for development of property adjacent to a state highway.
(g)
Notice shall be given by personal service or certified mail
to the Director of the Division of State and Regional Planning in
the Department of Community Affairs of a 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 Borough Clerk pursuant to N.J.S.A. 40:55D-10b.
(h)
Notice of hearing on the Master Plan, capital improvements programs
or Official Map shall be given in accordance with N.J.S.A. 40:55D-13
and N.J.S.A. 40:55D-15, respectively.
(i)
All notices hereinabove specified in this section shall be given
at least 10 days prior to the date fixed for hearing, and the applicant
shall file an affidavit of proof of service with the Board holding
the hearing on the application for development.
(j)
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. All notices required to be given pursuant to
the terms of this section shall state the date, time and place of
the hearing, the nature of the matters to be considered, including
a description of any waivers that may be required by the applicant
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 Tax Assessor's office. The notice
shall indicate the location and times at which any maps and documents
for which approval is sought may be reviewed by the public. If the
application for development includes consideration of a conditional
use, the hearing notice shall include a reference to the conditional
use.
(3)
List of property owners furnished. Pursuant to the provision of N.J.S.A.
40:55D-12c, the Tax Assessor, within seven days after receipt of a
request therefor and upon receipt of payment of a fee of $10 or $0.25
per name, whichever is more, shall make and certify a list from the
current tax duplicate of names and addresses of owners in the Borough
to whom the applicant is required to give notice pursuant to this
section. The applicant shall also supply to the Tax Assessor at the
time of request a map showing all properties and current Tax Map information
for the subject property and all properties within 200 feet of the
perimeter of the subject property. The applicant shall be entitled
to rely upon the information contained in such list, and failure to
give notice to any owner not on the list shall not invalidate any
hearing or proceeding.
H.
Material to be filed with the Boards. The applicant shall file an affidavit of proof of service, form of notice, list of property owners served and map specified in Subsection G, above, with the Board prior to the meeting.
I.
Decisions.
(1)
Each decision on any application for development shall be set forth,
in writing, as a resolution of the Board which shall include findings
of fact and legal conclusions based thereon. 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 Board shall provide the findings and conclusions through:
(a)
A resolution adopted at a meeting held within the time period
provided in N.J.S.A. 40:55D-1 et seq. for action by the Board on the
applications for development.
(b)
A memorializing resolution adopted at a meeting held not later
than 45 days after the date of the meeting at which the Board voted
to grant or deny the approval. Only the members of the Board who voted
for the action taken may vote on the memorializing resolution, and
the vote of a majority of such members present at the meeting at which
the resolution is presented for adoption shall be sufficient to adopt
the resolution. An action 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 e deemed to be a memorialization
of the action of the Board and not to be an action of the Board; however,
the date of adoption of the memorializing resolution as hereinabove
specified, any interested party may apply to the Superior Court in
a summary manner for an order compelling the Board to reduce its findings
and conclusions to writing within a stated time, and the cost of the
application, including attorney's fee, shall be assessed against the
municipality.
(2)
A copy of the decision shall be mailed by the Secretary of the Board
within 10 days of the date of decision or resolution of memorialization
to the applicant or, if represented, then to his or her attorney,
without separate charge. A copy of the decision shall also be mailed
to all persons who have requested it and who have paid the fee prescribed
for such service. A copy of the decision shall also be filed in the
office of the Borough Clerk, who shall make a copy of such filed decision
available to any interested party upon the payment of a fee calculated
in the same manner as those established for copies of other public
documents in the Borough.
(3)
Publication. A brief notice of every final decision shall be published
in the official newspaper of the Borough. Such publication shall be
arranged by the Secretary of the Planning Board or Zoning Board of
Adjustment, as the case may be, without separate charge to the applicant.
Said notice shall be sent to the official newspaper for publication
within 10 days of the date of any such decision or date of resolution
of memorialization.
J.
Payment of taxes. 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 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 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
thereon in such manner that the Borough will be adequately protected.
K.
Conditional approval.
(1)
In the event that a developer submits an application proposing a
development that is barred or prevented, directly or indirectly, by
a legal action instituted by any state agency, political subdivision
or any 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 Planning Board or Board of Adjustment shall process such
application in accordance with this chapter, and if such application
complies with all Borough regulations, the Planning Board or Zoning
Board of Adjustment shall approve such application conditioned on
removal of such legal barrier to development.
(2)
In the event that, during the period of approval heretofore or hereafter
granted to an application 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 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 under this article shall be suspended for the
period of time said legal action is pending or such directive or order
is in effect.
(3)
In the event that development proposed by an applicant requires an
approval by a governmental agency other than the Planning Board or
Zoning Board of Adjustment, the Board shall, in appropriate instances,
condition its approval upon the subsequent approval of such governmental
agency. The Board shall make a decision on any application within
the time period provided in this chapter or within an extension of
such period as has been agreed to by the applicant unless the Planning
Board is prevented or relieved from so acting by the operation of
law.
L.
Time extensions. The Board and an applicant may mutually agree to
extend the time limit specified for action. Such extension shall be
made for a specific period of time and shall be indicated in the minutes
of the meeting.
A Development Review Committee shall be established to review
all applications for development or requests for review presented
to the Planning Board and the Zoning Board. The Development Review
Committee shall be chaired by the Land Use Administrator and shall
include the Borough Engineer, Borough Planner, Construction Official,
and, in addition, any member of the Planning Board, the public or
any other municipal, county or state official as appointed by the
Chairperson of the Planning Board whose particular expertise may be
required on a specific application.
A.
The Development Review Committee shall have the following responsibilities:
(1)
To determine compliance with the technical standards set forth in
the provisions of this chapter.
(2)
To make recommendations on the design and technical elements of any
application.
(3)
To make nonbinding recommendations to the Board of Adjustment in
the case of waiver applications and nonbinding recommendations to
the Planning Board in the case of exception applications.
B.
The Development Review Committee shall provide its findings prior
to the meeting when the application is to be considered via a memorandum
or report that covers the following topics:
The Zoning Officer shall review all applications for development
to ensure they meet the requirements of this chapter except for those
sections where another official is specifically given enforcement
or administrative responsibilities. The Zoning Officer shall in no
case, except upon a written order of the Boards or the governing body,
approve the issuance by the Construction Official of any permit or
certificate for the erection or structural alteration or occupancy
of any building or land where the proposed erection, structural alteration
or use thereof would be in violation of any structural alteration
or use thereof would be in violation of any of the provisions of this
chapter. If a violation of this chapter is found to exist, the Zoning
Officer shall serve notice upon the owner and, if said violation is
not corrected within a reasonable period, shall prosecute a complaint
to terminate said violations before the Municipal Judge.
The Borough Engineer shall be responsible for the following
provisions of this chapter:
B.
Review of all engineering plans accompanying applications for development.
C.
Inspection of improvements constructed or installed as part of any
application for development other than those which are the responsibility
of the Construction Official.
D.
Certification before acceptance that all such improvements meet applicable
Borough codes and ordinances.
A.
Certificates of subdivision approval or exempt subdivisions. These
shall be issued by the Borough Engineer in accordance with N.J.S.A.
40:55D-56 of the Municipal Land Use Law. A fee of $10 shall be charged
for each certificate of approval.
B.
Building permits and certificates of occupancy.
(1)
Building permits. No building permit shall be issued by the Construction
Official until final approval has been granted to the application
for development.
(2)
Certificates of occupancy.
(a)
No land or new construction shall be occupied or used in whole
or in part for any purpose whatsoever until a certificate of occupancy
shall have been issued by the Construction Official stating that the
use of the land or building complies with the provisions of this chapter.
(b)
No change, extension or alteration of the use of any land or
structure shall be made until a certificate of occupancy shall have
been issued by the Construction Official upon notification by the
Zoning Officer that such change, extension or alteration is in conformity
with the provisions of this chapter, specifically see § 46-9B.[1]
(c)
No certificate of occupancy for any land or structure shall
be granted until all required improvements or conditions of approval
have been met, installed or completed. A temporary certificate of
occupancy may be issued but only for a specific period, upon such
conditions as the Borough Engineer may impose, such as bonding, to
ensure the completion or installation of any such improvements unfinished
because of weather or unforeseen delay. The installation of any required
public or private improvements may also be delayed if the Borough
Engineer warrants in writing to the Construction Official that the
delay is in the best interests of the Borough.
(3)
Zoning permits. Where an application for development does not require
a building permit, the Code Enforcement Officer shall review the application
for development and issue a zoning permit upon payment of the required
fee of $75. In the event that an application for development requires
a building permit, the issuance of a building permit shall be deemed
to include the issuance of a zoning permit.
A.
Subdivision.
(1)
General. 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 Borough approval is required, 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.
(2)
Specific relief. In addition to the foregoing, the Borough may institute
and maintain a civil action:
(3)
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 or
her assigns or successors to secure the return of any deposits made
or purchase 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, as set forth in N.J.S.A. 40:55D-55.
B.
Conditions of approval. It shall be the responsibility of an applicant
to maintain and enforce all conditions required by the Boards in granting
approval of an application for development as set forth in the resolution
of approval, minutes of the Boards or on the site plan or subdivision
plat submitted as part of the application. Failure to do so shall
be considered a violation of this chapter.
C.
Other violations. Unless otherwise specifically provided herein,
any violation of the provisions of this chapter shall be punishable
by a fine not to exceed $500 or by imprisonment in the county jail
for a term not to exceed 90 days, or both, at the discretion of the
Municipal Court. Each day the violation shall continue after a notice
and a reasonable opportunity to correct or remedy the violations shall
constitute a separate violation.
[Added 5-19-2021 by Ord. No. 2649-21]
A.
Fees and escrow.
[Amended 5-18-2022 by Ord. No. 2683-22]
(1)
Fees and escrow for applications or for the rendering of any
service by the Boards or any member of their administrative staffs
shall be as follows:
|
Fees and Escrow for Applications[1]
| ||
|---|---|---|
|
Category
|
Application Fee
|
Application Escrow
|
|
Relief from use regulation (D Variances)
| ||
|
One- or two-family
|
$250/variance
|
$750/variance
|
|
Three or more units
|
$250/variance
|
$1,500/variance
|
|
Nonresidential use
|
$300/variance
|
$1,500/variance
|
|
Relief from bulk regulations
| ||
|
One- or two-family
|
$200
|
$250 for the first variance and $50 for each additional variance
|
|
Three or more units
|
$200
| |
|
Nonresidential use
|
$200
| |
|
Request for design waivers
|
$50/waiver
| |
|
One- or two-family application[2]
|
$250
|
$3,500
|
|
Preliminary site plan
| ||
|
3 to 20 units
|
$250
|
$4,500
|
|
20+ units
|
$500
|
$5,500
|
|
Nonresidential, lot area 0 to 20,000 square feet
|
$500
|
$3,500
|
|
Nonresidential, lot area 20,000 to 50,000 square feet
|
$750
|
$5,000
|
|
Nonresidential, lot area 50,000 to 100,000 square feet
|
$750
|
$7,000
|
|
Nonresidential, lot area 100,000+ square feet
|
$750
|
$10,000
|
|
Final site plan
| ||
|
3 to 20 units
|
$3,375
| |
|
20+ units
|
$4,125
| |
|
Nonresidential, lot area 0 to 20,000 square feet
|
$2,625
| |
|
Nonresidential, lot area 20,000 to 50,000 square feet
|
$3,750
| |
|
Nonresidential, lot area 50,000 to 100,000 square feet
|
$5,250
| |
|
Nonresidential, lot area 100,000+ square feet
|
$7,500
| |
|
Subdivision
| ||
|
Sketch plan for major subdivision
|
$500
| |
|
Preliminary minor
|
$300 + $50 for each lot over 3 lots
|
$750
|
|
Preliminary major
|
$400 + $100/lot
|
$1,500
|
|
Final minor
|
$400 + $100/lot
|
$750
|
|
Final major
|
$400 + $100/lot
|
$1,500
|
|
Miscellaneous items
| ||
|
Hearing scheduled for special meeting
|
$500/meeting
| |
|
Special professional meeting (informal conceptual)
|
$100
|
$300/meeting
|
|
Development Review Committee meeting
|
$250
|
$500 for one- and two-family homes; all other applications $1,000
|
|
Legal notice publication fee
|
Actual cost of publication
| |
|
Zoning interpretation
|
$100
|
$750
|
|
Appeals to the Board
|
$100
|
$750
|
(2)
Fees for inspection of constructed improvements.
(a)
Each applicant shall pay all reasonable costs for the municipal
inspection of the construction site and off-site improvements. An
escrow fund will be established with the Borough before construction
begins and such funds shall be used to pay the fee and costs of professional
services employed by the Borough to inspect the construction.
(b)
An initial fee, except for extraordinary circumstances, of the
greater of $500 or 5% of the cost of improvements shall be deposited
prior to the issuance of any construction permit. The estimated cost
of improvements shall be calculated by the Borough Engineer based
on documented construction costs for public improvements prevailing
in the general area of the municipality. 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 for inspections, 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 for inspections, the Borough Chief Financial Officer shall provide
the developer with a notice of insufficient deposit balance and the
developer shall make additional deposits of 25% of the reasonably
anticipated fees. The Borough Engineer shall not perform any inspection
if sufficient funds to pay for those inspections are not on deposit,
except that any required health and safety inspections shall be made
and charged back against the replenishment of funds. If an inspection
deposit contains insufficient funds to enable the Borough to perform
required improvement inspections, the Borough Chief Financial Officer
shall provide the developer with a notice of insufficient deposit
balance. In order for work to continue on the development, the developer
shall within 10 days post a deposit to the account in an amount to
be agreed upon by the Borough and the developer. Upon the improvements
being approved, the deposit shall be closed out in the same manner
as is set forth for escrow accounts in this subsection.
(3)
All fees shall be paid as follows:
(a)
Fees shall be paid at the time of application.
(b)
In the event that the application is for more than one category
of relief or action, the fee shall consist of the total or the normal
fees for each category of action.
(c)
Additional fees. Applicants shall be required to pay any extraordinary
costs relating to subdivision, site plan, or conditional use review
and/or approval. Applicants shall be required to pay all inspection
fees for professionals with respect to the installation of improvements.
All such fees and charges shall be based upon a schedule established
by resolution of the Borough Committee.
(d)
Transcribing fees. The Boards may require the taking of testimony
stenographically and having the same transcribed, the cost of which
shall be borne and paid for by the appellant or applicant. The Boards
may require such deposit to be made for such purposes as shall be
reasonable in the circumstances.
(4)
Escrow account.
(a)
The escrow account is established to provide payment for the
technical and professional costs of the review of applications and
the review and preparation of documents and is based on the fee schedule
of this section. Reviewing applications shall include, but shall not
be limited to, all time spent at meetings by the professional staff.
(b)
All deposits for technical, professional review and inspection
fees shall be kept in an escrow account for that purpose by the Borough.
This account shall be managed by the Chief Financial Officer of the
Borough, in accordance with the terms of this section.
(c)
Whenever an amount of money in excess of $5,000 shall be deposited
by an applicant with the Borough for professional services employed
by the Borough or the approving Board to review applications for development,
municipal inspection fees in accordance with this chapter, or to satisfy
the guaranty requirements of this chapter, the money, until repaid
or applied to the purposes for which it was deposited, including the
applicant's portion of the interest earned thereon, except as otherwise
provided by law, shall continue to be the property of the applicant
and shall be held in trust by the Borough. Money deposited shall be
held in escrow. The Borough receiving the money shall deposit it 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.
The municipality 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 applicant and shall be refunded to the applicant 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 municipality
may retain for administrative expenses a sum equivalent to no more
than 1/3 of the entire amount, which shall be in lieu of all other
administrative and custodial expenses.
(d)
Whenever an escrow account drops to 50% or less of the initial required
escrow deposit, said account shall be replenished to the initial required
escrow amount within five business days of the request being made.
(e)
All applications for development within the Borough of Roselle shall be accompanied by an executed escrow agreement. No application for development shall be deemed complete unless an executed escrow agreement is received. The escrow agreement is attached hereto and known as "Attachment 8 - Escrow Agreement."
[Added 5-17-2023 by Ord. No. 2709-23]
B.
Professional fees.
(1)
IN-HOUSE PROFESSIONAL
OUTSIDE PROFESSIONALS
As used in this section, the following definitions shall apply:
Engineers, planners, attorneys, traffic officers, and other
professionals whose salary, staff support, and overhead are provided
by the Borough of Roselle.
Time spent by a professional engineer, professional planner,
attorney, traffic consultant, or other professionals in connection
with review of an application and/or review and preparation of documents
in regard to such application. In appropriate cases, such services
shall include, without limitation, review of plans, reports, relevant
ordinance provisions, statutory law, case law, and prior approvals
for the same parcel; site inspections; and preparation of resolutions,
developer's agreements, and other documents.
(2)
Prospective developers shall bear the cost of all fees for professional
services in connection with land development matters under consideration
by the Planning Board, Zoning Board of Adjustment, or the Borough
Council.
(a)
Said land development matters shall include, but not be limited
to, applications for development, appeals, interpretations, application
approvals, amendments to the Land Development Ordinance, and amendments
to the Master Plan.
(b)
All fees and deposits shall be paid at the time of application.
In the event that any escrow deposit shall be depleted, the Zoning
Officer shall determine the additional deposit required and shall
notify the applicant. No application shall be heard or otherwise processed
until and unless all fees and deposits have been paid.
(3)
Professional services are:
(a)
Services rendered by outside professionals to the Borough and/or
the reviewing board in connection with an application, plus all actual
out-of-pocket disbursements incurred in regard to such services. All
charges for services by each outside professional shall be billed
at the same rate as all other work of the same nature performed by
such professionals for the Borough when fees are not reimbursed or
otherwise imposed on an applicant. Charges for professional services
of outside professionals shall be based upon a schedule of fees established
by resolution, which may include a contract authorized by resolution.
Such schedules shall be subject to annual review by the Borough Council.
(b)
Services rendered by in-house professionals to the Borough and/or
the reviewing board in connection with an application. Services for
in-house professionals shall be billed 200% of the hourly base salary
multiplied by both the total number of hours of professional services
spent by each in-house professional in connection with the application.
The hourly base salary of each in-house professional shall be established
by ordinance annually.
(4)
Applicable professional services shall be:
(a)
Services which include but are not limited to inspections, investigations,
reviews, and attendance at meetings by planners, engineers, architects,
landscape architects, and other personnel and experts deemed necessary
with respect to action on said land development matters.
(b)
Attorney's services, including those of the board and/or Municipal
Attorney in connection with an application which is presently pending
before, or which has been approved by, a reviewing board. Such services
include extraordinary legal research and preparation or review of
documents, such as performance guarantees, developer and redeveloper
agreements, easements, maintenance or property owners' agreements,
or any other matters in connection with any approval. Such services
shall not include review of applications, attendance at meetings,
or preparations of resolutions granting or denying applications.
(5)
A professional shall not review items which are subject to approval
by a state governmental agency, and which are not under municipal
jurisdiction, except to the extent that research or consultation with
a state agency is necessary due to the effect of a state approval
on the applicant's application.
(7)
At the time of filing any application, each applicant shall make a deposit for professional fees in accordance with the schedule contained at § 650-86.1A(1) above. The applicant shall pay the deposit required for ach approval which is requested or deemed necessary to cover the cost of professional services.
(8)
Payments.
(a)
The Chief Financial Officer of the Borough shall make all of
the payments to professionals for services rendered to the Borough
or approving board for review for applications for development, review
and preparation of documents, inspection of improvements, or other
purposes under this chapter. Such fees or charges are to be based
upon the ordinances herein.
(b)
Each payment charged to a deposit for review of applications,
review and preparation of documents, and inspection of improvements
shall be pursuant to a voucher from the professional, which voucher
shall identify the personnel performing the service, and, for each
date the service is performed, the hours spent in 1/4 of an hour increments,
the hourly rate, and the expenses incurred. All professionals shall
submit vouchers to the Chief Financial Officer on a monthly basis,
in accordance with the schedules and procedures established by the
Chief Financial Officer. The professional shall send an information
copy of all vouchers or statements submitted to the Chief Financial
Officer simultaneously to the applicant. The Chief Financial Officer
shall prepare and send to the applicant a statement which shall include
an accounting of the 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 the monthly charges
exceed $1,000. If an escrow account or deposit contains insufficient
funds to enable the Borough or approving board to perform required
application reviews or improvements inspections, the Chief Financial
Officer shall provide the applicant with a written notice of the insufficient
escrow or deposit balance. In order for work to continue on the development
or the application, the applicant shall, within 10 days, post a deposit
to the account in an amount to be agreed upon by the Borough or the
approving board and the applicant. With regard to review fees, if
the applicant fails to make said deposit within the time prescribed
herein, the approving board shall be authorized to dismiss the application
without prejudice, subject to the right of the applicant to seek reinstatement
of said application by written notice to the Chief Financial Officer
that the deposits have been posted. The application will be reinstated
upon written notification by the Chief Financial Officer to the approving
board that said deposits are, in fact, posted. In the interim, the
required health and safety inspections shall be made and charged back
against the replenishment of funds. With regard to inspection fees,
the Borough Engineer shall not perform any inspection if sufficient
funds to pay for the inspections are not on deposit. Failure to post
or maintain balances in accordance with the requirements of these
sections will subject the developer to a stop-work order and/or suspension
of construction permits.
(c)
In addition, no hearing before any Borough board or committee
may be convened and no construction permit or certificate of occupancy
may be issued if such amounts are due and payable.
(d)
The applicant and Chief Financial Officer shall follow the following
close-out procedures for all deposits and escrow accounts established
herein. Said procedures shall commence after the approving authority
has granted final approval of the development application, including
completion of all conditions of said approval, and/or has signed the
appropriate subdivision map or deed or after all of the improvements
have been approved. The applicant shall send written notice, by certified
mail, to the Chief Financial Officer and the approving board and to
the relevant municipal professional that the application or the improvements,
as the case may be, are completed. 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.
The Chief Financial Officer shall render a written final accounting
to the applicant on the uses to which the deposit has been put within
45 days of the receipt of the final bill. Any balances remaining in
the deposit or escrow account, including interest, shall be refunded
to the applicant along with the final accounting.
(e)
All professional charges for review of the 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. Inspection fees shall be charged
only for actual work shown on a subdivision or site plan or required
by an approving resolution. 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 approval development
plans and documents.
(f)
If the municipality retains a different professional or consultant
in the place of the professional originally responsible for development,
application review, or inspection of improvements, the municipality
or approving board shall be responsible for all time and expenses
of the new professional to become familiar with the application or
the project, and the municipality or approving board shall not bill
the applicant or charge the deposit or the escrow for any such services.
(9)
Dispute of charge; appeals; rules and regulations. All disputes
relating to charges and appeals thereof shall be in accordance with
N.J.S.A. 40:55D-42.2a.
A.
Before the recording of final subdivision plats or as a condition
of final site plan approval or as a condition to the issuance of a
zoning permit, the approving authority may require and shall accept,
in accordance with the standards adopted by ordinance for the purpose
of assuring the installation and maintenance of on-tract improvements
and a pro rata share of off-tract improvements as permitted by law:
(1)
The furnishing of a performance guaranty in favor of the municipality
in an amount not to exceed 120% of the costs of installation for improvements
it may deem necessary or appropriate, including streets, grading,
pavement, gutters, curbs, sidewalks, streetlighting, shade trees,
surveyor's monuments, as shown on the final map and required by the
Map Filing Law,[1] water mains, culverts, storm sewers, sanitary sewers or
other means of sewage disposal, drainage structures, erosion control
and sedimentation control devices, public improvements of open space
and, in the case of site plans only, other on-site improvements and
landscaping.
[1]
Editor's Note: The Map Filing Law (L. 1960, c. 141) at N.J.S.A.
46:23-9.9 et seq., was repealed 2011, c. 217. See now N.J.S.A. 46:26B-1
et seq.
(2)
Provision for a maintenance guaranty to be posted with the governing
body for a period not to exceed two years after final acceptance of
the improvement, in an amount not to exceed 15% of the costs of the
improvement. In the event that other governmental agencies or public
utilities automatically will own the utilities to be installed or
the improvements are covered by a performance or maintenance guaranty
to another governmental agency, no performance or maintenance guaranty,
as the case may be, shall be required by the municipality for such
utilities or improvements.
(3)
The time allowed for installation of the improvements for which the
performance guaranty has been provided may be extended by the governing
body by resolution. As a condition or as part of any such extension,
the amount of any performance guaranty shall be increased or reduced,
as the case may be, to an amount not to exceed 120% of the cost of
the installation as determined as of the time of the passage of the
resolution.
B.
If the required improvements are not completed or corrected in accordance
with the performance guaranty, the obligor and surety, if any, shall
be liable thereon to the Borough for the reasonable cost of the improvements
not completed or corrected, and the Borough may, either prior to or
after the receipt to the proceeds thereof, complete such improvements.
C.
Upon substantial completion of all required appurtenant utility improvements
and the connection of the same to the public system, the obligor may
notify the governing body, in writing, certified mail addressed in
care of the Borough Clerk, of the completion or substantial completion
of improvements and shall send a copy thereof to the Borough Engineer.
Thereupon, the Borough Engineer shall inspect all improvements of
which such notice has been given and shall file a detailed report,
in writing, with the governing body, indicating either approval, partial
approval or rejection of such improvements, with a statement of reason
for any rejection. The cost of the improvements as approved or rejected
shall be set forth.
D.
The governing body shall either approve, partially approve or reject
the improvements on the basis of the report of the Borough Engineer
and shall notify the obligor, in writing, by certified mail, of the
contents of said report and the action of said approving authority
with relation thereto, not later than 65 days after receipt of the
notice from the obligor of the completion of the improvements. Where
partial approval is granted, the obligor shall be released from all
liability pursuant to its performance guaranty, except for that portion
adequately sufficient to secure provision of the improvements not
yet approved, provided that 30% of the amount of the performance guaranty
posted may be retained to ensure completion of all improvements. Failure
of the governing body to send or provide such notification to the
obligor within 65 days shall be deemed to constitute approval of the
improvements, and the obligor and surety, if any, shall be released
from all liability pursuant to such performance guaranty for such
improvements.
E.
If any portion of the required improvements is rejected, the approving
authority may require the obligor to complete such improvements, and,
upon completion, the same procedure of notification as set forth in
this section shall be followed.
F.
Nothing herein, however, shall be construed to limit the right of
the obligor to contest by legal proceedings any determination of the
governing body or the Borough Engineer.
G.
The obligor shall reimburse the Borough for all reasonable inspection
fees paid to the Borough Engineer for the foregoing inspection of
improvements, provided that the Borough may require of the developer
a deposit for all or a portion of the reasonably anticipated fees
to be paid to the Borough Engineer for such inspection.
H.
In the event that final approval is by stages or sections of development
pursuant to this chapter, the provisions of this section shall be
applied by stage or section.
