Township of East Brunswick, NJ Provisions Applicable to Both Boards

The application and site plan contain all of the items and information required under ordinances of the Township of East Brunswick.

The proposed buildings, structures and use are in accordance with the standards of this chapter and all ordinances of the Township of East Brunswick, including the Master Plan of the Township of East Brunswick as may be in existence at the time of the application.

The application and site plan provide a storm water management proposal meeting the goals and objectives of Township Ordinances.

Adequate provisions are made to screen all playgrounds and parking, service and storage areas from the view of adjacent properties and streets, during all seasons of the year, whenever the Planning Board shall determine that such screening is necessary to protect the health, safety or general welfare of the public.

(5)

The location, intensity and direction of all outdoor lighting is such that it will not have an adverse effect upon the existing or future use of adjoining properties.

(6)

Bikeways are installed or easements therefor granted to the township, in accordance with the provisions of § 192-27 of the Code of the Township of East Brunswick.

[Added 2-9-76 by Ord. No. 76-8-AAA]

(7)

Sidewalks are installed, wherever so required by the Planning Board, in accordance with the provisions of § 192-19 of the Code of the Township of East Brunswick and that ramp access of a type approved by the Planning Board is provided to allow access to all public buildings by the physically handicapped.

§ 132-30 Checklists. [1]

[Amended 7-8-91 by Ord. No. 91-82; 8-23-93 by Ord. No. 93-48; 10-15-01 by Ord. No. 01-33; 2-27-06 by Ord. No. 06-06; 9-27-10 by Ord. No. 10-22]

[1]

Editor's Note: The Checklists are included as attachments to this chapter.

§ 132-31 Environmental Impact Ordinance.

Purpose.

The purpose of this ordinance is to require developers to evaluate and assess the impacts on the environment generated by land development projects and to enable the Planning Board or Zoning Board of Adjustment to review such environmental analysis in order to reduce the adverse impact of development on the environment.

Requirements.

An environmental impact evaluation of the site (hereafter "the study") shall be submitted by the applicant as required by the checklists.

The environmental impact assessment shall be prepared by a person or persons having appropriate experience and background, and shall identify all relevant sources of information used in its preparation, and shall consider the topography, surface water bodies, energy, air quality, noise, surface water quality, aquatic biota, soils, geology, subsurface water, unique scenic or historic features, vegetation, wildlife and archaeological features of the entire site proposed for development. Forest vegetation shall be classified by type and age class. Map scales shall be no larger than l inch equals 100 feet, or as required by the Board.

Topography — The study shall provide a topographic survey showing one foot contour intervals within the proposed areas of intended use and in the areas within the perimeter of disturbance. The study shall also include a relief map, showing areas of common elevation.

Surface water bodies — Describe existing water courses and water bodies that abut, impact or are partially or totally on the site and their relationship to the area of land disturbance. Calculate existing surface runoff from the site. When the natural drainage pattern will be significantly altered, an analysis shall be conducted which will investigate flow, depth, capacity and water quality of the receiving waters. When required, floodplain areas shall be mapped in consultation with the New Jersey Department of Environmental Protection. Existing drainage structures shall be mapped and the capacity of the drainage network shall be determined.

Energy — Describe the proposed energy sources for all elements of the project, and identify alternative conservation measures that may be utilized.

Air quality — Describe each contamination source, its location, the quantity and nature of materials to be emitted from any furnace or other device in which coal, fuel, oil, gasoline, diesel fuel, kerosene, wood or other combustible material will be burned or if any other source of air pollutants, including vehicles attracted by the facility, will be present on the site during or after construction. If a state or federal emission permit is required, a copy of the permit and all resource data submitted with the application for the permit shall accompany the environmental assessment.

Noise — Description of all noise generating equipment, both during construction and after construction shall be identified. The decibel level shall be measured and new sources supplied. Compliance shall be made with the East Brunswick noise ordinance.

Surface water quality — Water quality analysis examining existing water quality conditions and protecting project impacts, with complete water testing according to the New Jersey Department of Environmental Protection to be performed by a New Jersey State Certified Laboratory.

Aquatic biota — Describe and identify fish and plant life that may be associated with surface water bodies.

Soils — Soils of the proposed area of land disturbance shall be mapped. List and describe each soil type located on the site, relative to the project proposed, including percolation data, depth to seasonal high water table (as indicated by the shallowest depth to soil mottling), erosion potential, aquifer recharge area and other factors related to soil as per the soil survey from the U.S. Department of Agriculture, Soil Conservation Service.

Geology — Describe the geologic formations, including surficial deposits associated with the site, relative to the project proposed.

10.

Subsurface water — Describe subsurface water conditions on the site in terms of depth to ground water and water supply capabilities on the site. Where existing conditions warrant, provide information regarding existing wells within 500 feet of the site relative to depth, capacity and water quality. Detail the water supply capabilities of the adjacent areas and the recharge capabilities of the site.

11.

Unique scenic or historic features — Describe and map those portions of the site that can be considered to have unusual scenic and/or historic qualities and have unusual scenic and/or historic qualities and attributes.

12.

Vegetation — Describe existing vegetation on the site. A map shall be prepared showing the location of major vegetated groupings, such as woodlands, open fields and wetlands. Where woodlands are delineated, the forest types shall be indicated (for example: upland deciduous, lowland deciduous, etc.). Specimen trees are to be identified as to location and species.

13.

Wildlife — Identify and describe any protected species and habitats. Evaluate additions and losses to species and habitat areas.

The environmental impact assessment should describe, with appropriate maps, the proposed project. The assessment shall summarize, rather than duplicate, the site plan and building plan. The assessment shall include a survey and description of the environmental features of the property. The scope and detail of the impact assessment will be determined by the Township staff, in consultation with the Environmental Commission.

In the review of an applicant's plan, the Board shall consider both the potential adverse and the positive environmental impacts of any proposed project as major factors in its findings and shall make findings. The object shall be to reduce, minimize or eliminate adverse environmental factors caused by the proposed development.

Critical Impacts.
Plans shall include any area, condition or feature which is environmentally sensitive or which, if disturbed during construction, would adversely affect the physical, social or historic environment of the area.
A.	Critical impact areas include, but are not limited to, stream corridors, streams, wetlands, estuaries, slopes greater than 20 percent, high acid or high erodible soils, areas of high water table, mature stands of native vegetation, aquifer recharge areas and archaeologically sensitive areas.
B.	A statement of impact upon critical areas and a listing of adverse impacts which cannot be avoided shall be included.
C.	Proposed measures intended by the developer to minimize damage to critical impact areas shall be indicated, both for the construction period and post construction period.
D.	A list of all licenses, permits, and other approvals that are required by municipal, county, regional, or state law and a status of each shall be included.

Approval.
No application for development shall be approved unless the application has demonstrated to the satisfaction of the municipal agency, through the study and such other information as the application may provide, that the development:
1.	Will not result in a significant adverse impact on the environment.
2.	Has been conceived and designed in such a manner that it will not significantly impair natural processes.
3.	Will not place disproportionate or excessive demand upon the total resources available to the project site or to the impact area.

Waiver.

The appropriate Board may waive any provision of this ordinance if deemed not applicable.

§ 132-32 Fees.

[Amended 2-11-91 by Ord. No. 91-16; 5-13-91 by Ord. No. 91-48; 3-27-95 by Ord. No. 95-10; 1-24-2022 by Ord. No. 22-02]

Fees for application or for the rendering of any service by the Boards or any members of their administrative staffs shall be as follows:

TYPE OF APPLICATION	FILING FEE
Letter of Intent	$50
Preliminary/Final Site	$1,500	for first 10,000 SF of tract area and
	$100	for each additional 5,000 SF or portion thereof plus
	$700	for each 1,000 SF of floor area up to 10,000 SF and
	$100	for each 10,000 SF of floor area over 10,000 SF
Site Plan Modification	$1,500
Minor Site Plan	$200
Conditional Use	$500
Minor Subdivision	$500	plus $375 per lot
Preliminary Subdivision	$1,100	plus $375 per lot
Final Subdivision	$1,300	plus $175 per lot
Deed Review	$150	per deed/description
Bulk Variance	$100	per variance in residential zones when exempt from site plan review
	$300	per variance in residential zones when site plan or subdivision required
	$375	per variance in all other zones
Use Variance	$1,500
P.U.R.D. (Preliminary)	$8,500	for first 40 acres or any part thereof, and
	$100	for each additional acre over 40 acres or any part thereof, and
	$100	per unit of residential development, and
	$0.20	per square foot of commercial development
P.U.R.D. (Final)	$4,000	plus $50 per unit (residential development) and
P.U.R.D. (Final)	$0.20	per square foot of commercial development
Request for Extension of Time	$300
Zoning Board Interpretation of Ordinance and Map	$250	residential zones
Zoning Board Interpretation of Ordinance and Map	$450	all other zones
Subdivision Certificate	$10
Property Owners Within 200 feet Radius	$0.25	per name or $10.00 whichever is greater
Permit for Structure on Lot Not Related to a Street	$150	residential zones
Permit for Structure on Lot Not Related to a Street	$250	all other zones
Appeal to Township Council	$200
Pre-Application Review	$150	per request
Review of Homeowners Documents	$550	for initial submission, plus $150 per addition to the initial document in order to expand the originally approved coverage of the Homeowner's Declaration of Covenants to add sections to the development
Review of Revised Plans in Accordance with Resolutions of Approval beyond applicant's initial resubmission	$300	per resubmittal
Review of As-Built Drawings	$375	per request
Zoning Board, Appeal of	$125	residential zones
Decision	$375	all other zones
Review of Application for completeness beyond initial submission	$75	per submittal
Conversion of Final Plat to CAD Format	$25	plus $10 per lot

Where an applicant seeks more than one approval in an Application for Development, applicant shall pay an aggregate fee equal to the total of all separate fees payable for each approval requested in the Application for Development. For purposes of this section separate fees shall be payable for use variances and for bulk variances.

No fee shall be required for a bulk variance from the requirements of the Zoning Ordinance where it involves a pre-existing condition.

Whenever an application is made for site plan approval or a use variance with regard to a pre-existing undersized lot or parcel, the fee for bulk variances shall not exceed $375.00, regardless of the number of new bulk variances required.

Refunds-Application fees involving site plan, subdivision and variance applications which are withdrawn prior to one week preceding the first scheduled public hearing are entitled to a refund in accordance with the following schedule:

Prior to certification that application is complete - 90%.

After certification but prior to one week preceding the first scheduled public hearing - 50%.

Revised Plans-Each additional review of revised plans in accordance with Resolutions of approval adopted by the Planning or Zoning Board for approval compliance - $50.00 for minor and modified subdivisions and site plans, and $200.00 for major site plan and subdivision compliance review beyond the applicant's initial resubmission of plans.

§ 132-32.1 Mandatory Development Fees.

[Added 10-13-97 by Ord. No. 97-28; amended 2-23-98 by Ord. No. 98-8; 4-18-05 by Ord. No. 05-06; 4-24-6 by Ord. No. 06-15; 9-14-09 by Ord. No. 09-19; Amended 11-28-16 by Ord. 16-21; 3-6-17 by Ord. No. 17-12]

Purpose. In Holmdel Builder's Association V. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules. Pursuant to P.L. 2008, c. 46 section 8 (C. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (C. 40:55D-8.1 through 8.7), COAH was authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or a Court of competent jurisdiction and have an approved spending plan may retain fees collected from residential and non-residential development.

This ordinance establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32-38. Fees collected pursuant to this ordinance shall be used for the sole purpose of providing low- and moderate-income housing. This ordinance shall be interpreted within the framework of COAH's rules on development fees.

Basic Requirements.

[Added 9-14-09 by Ord. No. 09-19; amended 3-6-17 by Ord. No. 17-12]

This ordinance shall not be effective until approved by the Court as part of the grant of a Judgement of Compliance and Repose.

The Township of East Brunswick shall not spend development fees until the Court has approved a plan for spending such fees as part of the grant of a Judgement of Compliance and Repose.

Residential Development Fees. All developers of residential developments for which minor or major subdivision or site plan approval are required shall pay a development fee of one and one half (1.5) percent of the equalized assessed value for each residential unit constructed. When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a Ad@ variance) has been permitted, developers shall be required to pay a development fee of six percent (6%) of the equalized assessed value for each additional unit approved. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.

[Amended 4-18-05 by Ord. No. 05-06; 4-24-06 by Ord. No. 06-15; 9-14-09 by Ord. No. 09-19]

Eligible Exactions, Ineligible Exactions and Exemptions for Residential Developments.

Affordable housing developments and/or developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from the payment of development fees.

Developments that have received preliminary or final site plan approval prior to the adoption of this Ordinance shall be exempt from the payment of development fees, unless the developer seeks a substantial change in the original approval. Where site plan approval is not applicable, the issuance of a Zoning Permit and/or Construction Permit shall be synonymous with preliminary or final site plan approval for the purpose of determining the right to an exemption. In all cases, the applicable fee percentage shall be determined based upon the Development Fee Ordinance in effect on the date that the Construction Permit is issued.

Improvements or additions to existing one and two-family dwellings on individual lots shall not be required to pay a development fee, but a development fee shall be charged for any new dwelling constructed as a replacement for a previously existing dwelling on the same lot that was or will be demolished, unless the owner resided in the previous dwelling for a period of one year or more prior to obtaining a demolition permit. Where a development fee is charged for a replacement dwelling, the development fee shall be calculated on the increase in the equalized assessed value of the new structure as compared to the previous structure.

Homes replaced as a result of a natural disaster (such as a fire or flood) shall be exempt from the payment of a development fee.

Nonresidential Development Fees. Within all zoning districts, non-residential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to two and one-half (2.5) percent of the equalized assessed value of the land and improvements, for all new non-residential construction on an unimproved lot or lots. Non-residential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to two and one-half (2.5) percent of the increase in equalized assessed value resulting from any additions to existing structures to be used for non-residential purposes

Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of two and a half percent (2.5%) shall be calculated on the difference between the equalized assessed value of the pre-existing land and improvement and the equalized assessed value of the newly improved structure, i.e. land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the non-residential development fee shall be zero.

[Amended 9-14-09 by Ord. No. 09-19]

Eligible exactions, ineligible exactions and exemptions for non-residential development:

The non-residential portion of a mixed-use inclusionary or market rate development shall be subject to the two and a half (2.5) percent development fee, unless otherwise exempted below.

The two and a half percent (2.5% development fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within the existing footprint, reconstruction, renovations and repairs.

Non-residential developments shall be exempt from the payment of non-residential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF A State of New Jersey Non-Residential Development Certification/Exemption@ Form. Any exemption claimed by a developer shall be substantiated by that developer.

A developer of a non-residential development exempted from the non-residential development fee pursuant to P.L. 2008, c. 46 shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the non-residential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the non-residential development, whichever is later.

If a property which was exempted from the collection of a non-residential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid non-residential development fees under these circumstances may be enforceable by the Township of East Brunswick as a lien against the real property of the owner

Collection of Fees.

[Amended 9-14-09 by Ord. No. 09-19]

An estimated development fee shall be calculated by the certified financial officer or designee, utilizing estimates for equalized assessed value, prior to the issuance of a certificate of occupancy.

[Amended 9-14-09 by Ord. No. 09-19]

Developers shall pay the estimated development fee in full to the Township of East Brunswick at the issuance of a certificate of occupancy. Such development fees shall be deposited into an escrow account and held until: (1) the tax assessor officially calculates the equalized assessed value in conjunction with the annual added assessment list, and (2) the final development fee using the equalized assessed value is calculated by the certified financial officer or designee. The developer shall be responsible for paying any difference between the amount paid at the time of issuance of a certificate of occupancy and the final development fee. The Township shall be required to refund any monies paid at the time of the issuance of a certificate of occupancy in excess of the final development fee.

Collection procedures.

[Added 9-14-09 by Ord. No. 09-19; amended 3-6-17 by Ord. No. 17-12]

Upon the granting of a preliminary, final or other applicable approval, for a development, the applicable approving authority shall direct its staff to notify the Construction Official or designee responsible for the issuance of a building permit.

For non-residential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption" or its successor to be completed as per the instructions provided. The developer of a non-residential development shall complete Form N-RDF as per the instructions provided. The Construction Official or designee shall verify the information submitted by the non-residential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.

[Added 3-6-17 by Ord. No. 17-12]

The Construction Official or designee shall notify the Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.

Within 90 days of receipt of that notice, the Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.

The Construction Official responsible for the issuance of a final certificate of occupancy or designee notifies the Tax Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.

Within 10 business days of a request for the scheduling of a final inspection, the municipal assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.

Should East Brunswick Township fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in subsection b of section 37 of P.L. 2008, c. 46 (C. 40:55D-8.6).

Appeal of development fees.

[Added 9-14-09 by Ord. No. 09-19]

A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest bearing escrow account by East Brunswick Township. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, R.S. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

A developer may challenge non-residential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest bearing escrow account by East Brunswick Township. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, R.S. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

Affordable Housing Trust Fund.

[Amended 9-14-09 by Ord. No. 09-19; 3-6-17 by Ord. No. 17-12]

There is hereby created an interest bearing housing trust fund for the purpose of receiving development fees from residential and nonresidential developers and proceeds from the sale of units with extinguished controls. All development fees paid by developers pursuant to this ordinance shall be deposited in this fund. No money shall be expended from the Affordable Housing Trust Fund unless the expenditure conforms to a spending plan approved by COAH or the Court, as applicable. The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

Payments in lieu of on-site construction of affordable units;

Developer contributed funds to make ten percent (10%) of the adaptable entrances in a townhouse or other multistory attached development accessible;

Rental income from municipally operated units;

Repayments from affordable housing program loans;

Recapture funds;

Proceeds from the sale of affordable units; and

Any other funds collected in connection with East Brunswick Township's affordable housing program.

If COAH or the Court determines that the Township of East Brunswick is not in conformance with COAH's rules on development fees, the State of New Jersey shall be authorized to direct the manner in which all development fees collected pursuant to this ordinance shall be expended. Such authorization is pursuant to: this ordinance, COAH's rules on development fees, and the written authorization from the Township Council to the bank in which the housing trust fund is located.

Use of Funds.

[Amended 9-14-09 by Ord. No. 09-19; 3-6-17 by Ord. No. 17-12]

The expenditure of all funds shall conform to a spending plan approved by the Court. Funds deposited in the housing trust fund may be used for any activity approved by the Court to address East Brunswick Township's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to: preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing non-residential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity permitted by the Court as specified in the approved spending plan.

Funds shall not be expended to reimburse the Township of East Brunswick for past housing activities.

At least 30 percent of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30 percent or less of median income by region.

Affordability assistance programs may include down payment assistance, utility payment assistance, security deposit assistance, low interest loans, rental assistance, assistance with homeowners association or condominium fees and special assessments, and assistance with emergency repairs.

Affordability assistance to households earning 30 percent or less of median income may include buying down the cost of low or moderate income units in the municipal Fair Share Plan to make them affordable to households earning 30 percent or less of median income. The use of development fees in this manner may entitle the Township of East Brunswick to bonus credits pursuant to N.J.A.C. 5:97-3.7.

Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.

The Township of East Brunswick may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:96-18.

No more than 20 percent of all revenues collected from development fees annually, may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20 percent of the annual revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with the Court's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Court's or COAH's requirements or regulations and/or actions are not eligible uses of the affordable housing trust fund.

[Amended 11-28-16 by Ord. 16-21; 3-6-17 by Ord. No. 17-12]

Monitoring.

On the first anniversary of the entry of the Order granting East Brunswick a Final Judgment of Compliance and Repose, and every anniversary thereafter through the end of the Repose period, the Township shall provide annual reporting of its Affordable Housing Trust Fund activity to the New Jersey Department of Community Affairs, Council on Affordable Housing or Local Government Services, or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center and posted on the municipal website, using forms developed for this purpose by the New Jersey Department of Community Affairs, Council on Affordable Housing or Local Government Services. The reporting shall include an accounting of all Affordable Housing Trust Fund activity, including the source and amount of funds collected and the amount and purpose for which any funds have been expended.

[Added 9-14-09 by Ord. No. 09-19; amended 11-28-16 by Ord. 16-21]

Expiration of Ordinance.

The ability for East Brunswick Township to impose, collect and expend development fees shall expire with the expiration of its Judgement of Compliance and Repose unless East Brunswick Township has, prior to that expiration, filed an adopted Housing Element and Fair Share Plan with the Court or COAH, or other authorized agency duly empowered to grant substantive certification or its equivalent, has petitioned for a new Judgement of Compliance and Repose or substantive certification, and has received approval of its development fee ordinance from the applicable entity. If East Brunswick Township fails to renew its ability to impose and collect development fees prior to the expiration of its Judgement of Compliance and Repose, it may be subject to forfeiture of any or all funds remaining within its housing trust fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to section 20 of P.L. 1985, c. 222 (C. 52:27D-320). East Brunswick Township shall not impose a residential development fee on a development, nor shall East Brunswick Township retroactively impose a residential development fee on a development, nor shall East Brunswick Township expend development fees after the expiration of its Judgement of Compliance and Repose.

[Amended 9-14-09 by Ord. No. 09-19; 3-6-17 by Ord. No. 17-12]

Definitions.

[Amended 9-14-09 by Ord. No. 09-19; 11-28-16 by Ord. 16-21; 3-6-17 by Ord. No. 17-12]

"Affordable Housing Development" means a development included in the Housing Element and Fair Share Plan, and includes but is not limited to, an inclusionary development, a municipal construction project or a 100 percent affordable development.

[Added 9-14-09 by Ord. No. 09-19]

"COAH" or the "Council" means the New Jersey Council on Affordable Housing established under the Fair Housing Act given as primary jurisdiction for the administration of housing obligations in the State or any subsequent entity assigned primary jurisdiction for the administration of affordable housing.

[Amended 9-14-09 by Ord. No. 09-19; 11-28-16 by Ord. 16-21; 3-6-17 by Ord. No. 17-12]

"Developer" means the legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.

[Added 9-14-09 by Ord. No. 09-19]

"Development fees" means money paid by a developer for the improvement of property as permitted by law.

[Amended 9-14-09 by Ord. No. 09-19; 3-6-17 by Ord. 17-12]

"Equalized assessed value" means the assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with sections 1, 5, and 6 of P.L. 1973, c. 123 (C. 54:1-35a through C. 54:1-35c.).

[Amended 9-14-09 by Ord. No. 09-19]

"Green Building Strategies" means those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.

[Added 9-14-09 by Ord. No. 09-19]

"Judgment of Compliance and Repose" means a judgment issued by the Superior Court approving a municipality's plan to satisfy its fair share obligation.

[Amended 9-14-09 by Ord. No. 09-19; 3-6-17 by Ord. No. 17-12]

§ 132-33 Escrow.

[Amended 5-10-93 by Ord. No. 93-23; 10/2/95 by Ord. No. 95-34; 10-15-01 by Ord. No. 01-33]

Escrow shall be deposited with the Township to cover the cost of any professional services rendered to the municipality or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of P.L. 1975, c. 291 (C. 40:55D-1 et seq.)

Prior to an application being ruled complete, the following sum(s) shall be submitted to be held in escrow:

RESIDENTIAL DEVELOPMENT (Subdivisions, P.U.R.D.'s)	ESCROW TO BE POSTED
0-25 Units/Lots	$2,000.00
26-100 Units/Lots	$2,500.00
101+ Units/Lots	$4,999.00
NON-RESIDENTIAL DEVELOPMENT (Subdivision)	NOT INVOLVING STRUCTURES
LOTS
0-3	$3,500.00
3+	$4,999.00
NON-RESIDENTIAL DEVELOPMENT (Site Plans)	INVOLVING STRUCTURES/PAVEMENT
TOTAL FLOOR PLAN
1,250-2,500 square feet	$1,000.00
2,501-20,000 square feet	$2,000.00
20,000+ square feet	$4,999.00
USE VARIANCE [Added 10-15-01 by Ord. No. 01-33]	$1,000.00

Escrow shall be posted with the Township in cash, Certified Check or Money Order.

All funds shall be deposited by the Finance Officer in accordance with N.J.S.A. 40:55D-53.1.

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 modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any State governmental agency and not under municipal jurisdiction except to the extent consultation with a State agency is necessary due to the effect of State approvals in the subdivision or site plan.

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 shall be responsible for all time and expenses of the new professional to become familiar with the application or the project, and the municipality shall not bill the applicant or charge the deposit or the escrow account for any such services.

§ 132-33.1 Reimbursement.

[Added 5-10-93 by Ord. No. 93-23; amended 10-2-95 by Ord. No. 95-34]

The municipality shall be reimbursed for all payments to independent consultants in accordance with N.J.S.A. 40:55D-53.2. If the salary, staff support and overhead for a municipal professional are provided by the municipality, the charge shall not exceed 200% of the sum of the products resulting from multiplying (1) the hourly base salary, which shall be established annually by ordinance, of each of the professionals by (2) 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.

§ 132-33.2 Definition of Professional.

[Added 5-10-93 by Ord. No. 93-23]

All escrow funds shall be utilized by the appropriate Board to pay the cost of any professional fees incurred by the Board for review and/or testimony. The term "professional", as used herein, shall include the services of a duly licensed engineer, surveyor, planner, attorney, appraiser or other expert who would provide professional services to insure that an application complies with the standards set forth in Township ordinances and experts whose testimony may be solicited to give further information to the Approving Board in any area addressed by any of applicant's experts.

§ 132-33.3 Refund of Escrow.

[Added 5-10-93 by Ord. No. 93-23; amended 10-2-95 by Ord. No. 95-34]

The following close-out procedure shall apply to all deposits and escrow accounts established under the provisions of P.L. 1975, c. 291 (C. 40:55D-1 et seq.) and shall commence after the approving authority 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 as provided in section 41 of P.L. 1975, c. 291 (C. 40:55D-53), in the case of improvement inspection escrows and deposits. The applicant shall send written notice by certified mail to the chief financial officer of the municipality and the approving authority, 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 of the municipality within 30 days, and shall send a copy simultaneously to the applicant. The chief financial officer of the municipality shall render a written final accounting to the applicant on the uses to which the deposit was put within 45 days of receipt of the final bill. Any balances remaining in the deposit or escrow account, including interest in accordance with section 1 of P.L. 1985, c. 315 (C. 40:55D-53.1), shall be refunded to the developer along with the final accounting.

NOTE: To facilitate the release of escrow, applicants are requested to submit a signed escrow release voucher with the development application.

§ 132-33.4 Reimbursement for Services.

[Added 5-10-93 by Ord. No. 93-23]

No subdivision plat or deed, or site plan, shall be signed, nor shall any zoning permits, based upon variances or interpretations of the Zoning Ordinance, building permits, certificates of occupancy or any other types of permits be issued with respect to any approved application for development until:

All bills for reimbursable services have been received by the municipality from professional persons rendering services in connection with such application;

The applicant has reimbursed the municipality the excess by which the amount of the bills exceeds the amount escrowed. The applicant shall place on the record its agreement to be bound by the provisions of the Township's escrow ordinances.

§ 132-33.5 Charge for Services.

[Added 5-10-93 by Ord. No. 93-23; amended 2-10-2020 by Ord. No. 20-03]

No professional personnel submitting bills to the Township under this chapter shall charge for any of the services referred to therein at any higher rate or in any different manner from that which would normally be charged to the municipality for similar work. Payment of any bill rendered by a professional to the municipality with respect to any service for which the municipality is entitled to reimbursement shall in no way be contingent upon receipt of reimbursement by the applicant, nor shall any payment for service be delayed pending reimbursement of the Township by an applicant.

Charges for professionals who are employees of the municipality may not exceed 200% of the sum of the products resulting from multiplying the hourly base salary (established by ordinance, as aforesaid) by the number of hours spent by the professional in reviewing the application for development, including all meetings and site visits.

§ 132-33.6 Payments.

[Added 10-2-95 by Ord. No. 95-34]

The Chief Financial Officer of a municipality shall make all of the payments to professionals for services rendered to the municipality or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.). Such fees or charges shall be based upon a schedule established by resolution.

Each payment charged to the deposit for review of applications, review and preparation of document 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 services performed, the hours spent to one-quarter hour increments, the hourly rate and the expenses incurred. All professionals shall submit vouchers to the Chief Financial Officer of the municipality on a monthly basis in accordance with schedules and procedures established by the Chief Financial Officer of the municipality. If the services are provided by a municipal employee, the municipal employee shall prepare and submit to the Chief Financial Officer of the municipality a statement containing the same information as required on a voucher, on a monthly basis. The professional shall send an informational copy of all vouchers or statements submitted to the Chief Financial Officer of the municipality simultaneously to the applicant. The Chief Financial Officer of the municipality 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. If an escrow account or deposit contains insufficient funds to enable the municipality or approving authority to perform required application reviews or improvement inspections, the Chief Financial Officer of the municipality shall provide the applicant with a notice of the insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall, within a reasonable time period, post a deposit to the account in an amount to be agreed upon by the municipality or approving authority and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

§ 132-33.7 Dispute of Charges.

[Added 10-2-95 by Ord. No. 95-34]

An applicant shall notify, in writing, the governing body, with copies to the Chief Financial Officer, the approving authority and the professional, whenever the applicant disputes the charges made by a professional for service rendered to the municipality 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.). The governing body, or its designee, shall, within a reasonable time period, attempt to remediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals established under Section 9 of P.L. 1975, c. 217 (N.J.S.A. 52:27D-127) any charge to an escrow account or a deposit by any municipal professional or consultant, or the cost of the installation of improvements estimated by the Municipal Engineer pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). An applicant or his authorized agent shall submit the appeal in writing to the County Construction Board of Appeals. The applicant or his authorized agent shall simultaneously send a copy of the appeal to the municipality, approving authority, and any professional whose charge is the subject of the appeal. An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by Subsection c of Section 13 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53-2), except that if the professional has not supplied the applicant with an informational copy of the professional's 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 required by Subsection c of Section 13 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53-2). An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An applicant making use of this provision need not appeal each charge individually.

The County Construction Board of Appeals shall hear the appeal, render a decision thereon, and file its decision with a statement of the reasons therefor with the municipality or approving authority not later than 10 business days following the submission of the appeal, unless such period of time has been extended with the consent of the applicant. The decision may approve, disapprove, or modify the professional charges appealed from. A copy of the decision shall be forwarded by certified or registered mail to the party making the appeal, the municipality, the approving authority, and the professional involved in the appeal. Failure by the Board to hear an appeal and render and file a decision thereon within the time limits prescribed in this subsection shall be deemed a denial of the appeal for purposes of a complaint, application, or appeal to a court of competent jurisdiction.

The county construction board of appeals shall provide rules for its procedure in accordance with this section. The board shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, and the provisions of the "County and Municipal Investigation Law," P.L. 1953, c. 38 (C. 2A:6AA-1 et seq.) shall apply.

During the pendence 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 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.

§ 132-34 Submissions of Environmental Commission.

Whenever the Environmental Commission has prepared and submitted to the Planning Board and to the Board of Adjustment an index of the natural resources of the Township (Natural Resources Inventory), the Planning Board or Board of Adjustment shall make available to the Environmental Commission an information copy of every application for development submitted to either Board. Failure of the Planning Board or Board of Adjustment to make such informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.

§ 132-35 Notice Requirements.

Notices pursuant to this ordinance shall state the time and place of the hearing; the nature of the matters to be considered; and in, the case of notices pursuant to N.J.S.A. C. 40:55D-12, 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 Municipal Tax Assessor's Office, and the location and times at which any maps and documents for which approval is sought are available.

Whenever a hearing is required on an application for development pursuant to c. 291, P.L. 1975 (N.J.R.S. 40:55D-1 et seq.), the applicant shall give notice as follows:

Notice shall be given by the applicant not less than ten (10) days prior to the date of the hearing.

Public notice of a hearing on all applications for development and for appeals, except for minor site plans, and final subdivision, shall be given by the applicant. Public notice shall be given by publication in one of the official newspapers of the township.

Notice of a hearing requiring public notice pursuant to Subsection B of this section shall be given to the owners of all real property, as shown on the current tax duplicate, located in the State and within two hundred (200) feet in all directions of the property which is the subject of such hearing; provided that this requirement shall be deemed satisfied by notice to the (1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) 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 address as shown on said current tax duplicate. 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. 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.

Upon the written request of an applicant, the Director of Planning and Engineering or his designee shall, within seven (7) 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 C 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 not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $.25 per name, or $10.00, whichever is greater, shall be charged for such list.

Notice of all hearings on applications for development involving property located within two hundred (200) feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality.

Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on an application 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 two hundred (200) feet of a municipal boundary. Such notice shall be accompanied by a copy of the application for development which has been filed with the East Brunswick Director of Planning and Engineering or his designee(s), and by three (3) full sets of all supporting documents. The copy of the foregoing application and documents which are delivered to the Middlesex County Planning Board shall bear the "received" stamp of the East Brunswick Department of Planning and Engineering.

Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway, as it affects access, drainage and utilities. Such notice shall be accompanied by a copy of the application for development which has been filed with the East Brunswick Director of Planning and Engineering, or his designee, and by six (6) full sets of all supporting documents. The copy of the foregoing application and documents which are delivered to the Commissioner of Transportation shall bear the "received" stamp of the East Brunswick Department of Planning and Engineering.

Notice shall be given by personal service or certified mail to the Director of the Division of State and Regional Planning, New Jersey Department of Community Affairs, of a hearing on an application for development of property which exceed one hundred fifty (150) acres or five hundred (500) dwelling units. Such notice shall be accompanied by a copy of the application for development which has been filed with the East Brunswick Director of Planning and Engineering, or his designee, and by one (1) copy of all supporting documents. The copy of the foregoing application and documents which are delivered to the Director of the Division of State and Regional Planning, New Jersey Department of Community Affairs, shall bear the "received" stamp of the East Brunswick Department of Planning and Engineering.

Notice shall be given by personal service or certified mail to the appropriate official of the United States Soil Conservation Service district office of an application for development which exceeds five thousand (5,000) square feet of soil disturbance in accordance with the Soil Erosion and Sediment Control Act, N.J.R.S. 4:24 39 et seq. Such notice shall be accompanied by a copy of the application for development which has been filed with the East Brunswick Director of Planning and Engineering, or his designee, and by three (3) full sets of the soil erosion and sedimentation control plans submitted with such application. The copy of the foregoing application and documents which are delivered to the United States Soil Conservation district office shall bear the "received" stamp of the East Brunswick Department of Planning and Engineering.

Notice shall be given by personal service or certified mail to the Commissioner of Environmental Protection, State of New Jersey, of any application for development of property which involves a stream encroachment, as defined by N.J.R.S. 58:1 et seq., and of any application for development of property involving a floodway as designated by the State of New Jersey. Such notice shall be accompanied by a copy of the application for development which has been filed with the East Brunswick Director of Planning and Engineering, or his designee, and by five (5) full sets of the plans submitted with each application. The copy of the foregoing application and documents which are delivered to the Commissioner of Environmental Protection shall bear the "received" stamp of the East Brunswick Department of Planning and Engineering.

The applicant shall file an affidavit of proof of service of all of the aforesaid notices required for the applicant's particular application with the township agency holding the hearing on the application for development, in the event that the applicant is required to give notice pursuant to this section.

§ 132-36 Notices Complete Upon Mailing.

Any notice made by certified mail shall be complete upon mailing.

§ 132-37 Completion of Prior Conditions.

No application for development will be granted unless all conditions imposed on prior approved applications for the same site have been completed.

§ 132-38 Payment of Taxes.

[Amended 5-10-93 by Ord. No. 93-24]

Pursuant to the provision of N.J.S.A. 40:55D 39 and N.J.S.A. 40:55D 65, every application for development submitted shall be accompanied by proof that no taxes or assessments for local improvements or fines, penalties or any monies are due or delinquent on the property which is the subject of such application; or, if it is shown that taxes, assessments, fines, penalties or any monies are delinquent on said property, no deliberations or action shall be taken by any Township agency or Board. At the time of Board action or deliberation on an application, proof shall be submitted that no taxes or assessments, as of that date, for local improvements are due or delinquent.

§ 132-39 Appearance Required.

The applicant or his agent shall appear at all regular meetings of the Board whenever the application is being considered. Failure to appear shall give the Board the right to postpone action on the application if the applicant or the agent's absence deprives the Board of information necessary to make a decision.

§ 132-40 Meetings.

Meetings of each Board shall be scheduled at least once a month, unless cancelled for lack of applications.

Special meetings may be provided for at the call of the Chairman or on the request of any two (2) Board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.

No action shall be taken at any meeting without a quorum being present.

All actions shall be taken by majority vote of the members of the municipal agency present except as otherwise required by Sections of this chapter.

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.).

§ 132-41 Minutes.

Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the township agency and of the persons appearing by attorney, the action taken by the township agency, the findings if any, made by it and the reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Director of the Department of Planning and Engineering. 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 fee as established by this chapter for reproduction of the minutes for his use.

§ 132-42 Hearings.

The municipal agency shall hold a hearing on each application for development or adoption, revision or amendment of the Master Plan.

The municipal agency shall make the rules governing the conduct of hearings which 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 ordinance.

Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least ten (10) days before the date of the hearing, during normal business hours, in the office of the Director of the Department of Planning and Engineering. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

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, P.L. 1953, c. 38, (c. 2A:67A-1 et seq), shall apply.

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.

All representations, commitments and agreements made by the applicant or his representatives at the hearing or contained in any document, plat or submission delivered to the Board at any time, including notes contained on any development plans, unless modified by the Board, shall be considered as conditions of approval of the application for development and shall be incorporated by reference in the resolution of approval.

Technical rules of evidence shall not be applicable to the hearing, but the Chairperson of the agency may exclude irrelevant, immaterial or unduly repetitious evidence.

The municipal agency shall provide for the verbatim recording of the proceedings by either stenographic, mechanical or electronic means. The municipal agency shall furnish a transcript, or duplicate recordings in lieu thereof, on request to any interested party at his expense, as set forth in 3 114 of the Code provided that the cost shall not exceed the maximum permitted in N.J.S.A. 2A:11-15.

When any hearing before a Board shall carry over two (2) or more meetings, a member of the Board who was absent for one (1) or more of the meetings shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one (1) or more of the previous meetings; provided, however, that such Board member has available to him a transcript or recording from the meetings from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.

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.

§ 132-43 Decisions.

The municipal agency 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 the act 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, 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 pursuant to N.J.S.A. (C. 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 publication required by subsections h and I of 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 Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing with a stated time and the cost of the application, including attorney's fees, shall be assessed against the municipality.

Copies of the decision shall be mailed by the Secretary of the Board within ten (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 fee as specified in this chapter. A copy of the decision shall also be filed by the township agency in the office of the Township Clerk or the Director of the Department of Planning and Engineering, who shall make a copy of such filed decision available to any interested party for a fee as specified in this chapter and available for public inspection at his or her office during township business hours.

A brief notice of the decision shall be published in the official newspaper of the township. Such publication shall be arranged by the Township Clerk or the Director of the Department of Planning and Engineering or his designee, provided that the applicant may in any case provide for publication of the decision. The applicant shall pay a fee as designated by this chapter for publication of said notice; provided, however, that if the applicant furnished proof of publication of the notice of decision to the designated municipal officer within ten (10) days from the date of decision, the township shall refund the fee paid by the applicant to cover the cost of publication. The period of time in which an appeal of decision may be made shall run from the first publication of the decision, whether arranged by the township or the applicant.

§ 132-44 Time Limit for Decision.

[Amended 1-25-99 by Ord. No. 99-4]

Site Plan (10 acres or less)

Upon the submission of a complete application for a site plan which involves ten (10) acres of land or less, and ten (10) dwelling units or less, the Planning Board shall grant or deny site plan approval within forty five (45) 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 to the site plan.

Site Plan (more than 10 acres)

Upon the submission of a complete application for a site plan which involves more than ten (10) acres, or more than ten (10) dwelling units the Planning Board shall grant or deny approval within ninety five (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 approval of the site plan.

Minor Subdivisions

Minor subdivision approval shall be granted or denied within forty five (45) days of the date of submission of a complete application or within such further time as may be consented to by the applicant. Failure of the Planning Board to act within the period prescribed shall constitute minor subdivision approval, and a certificate of the Director of the Department of Planning and Engineering 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 accepted by the county recording officer for purposes of filing the subdivision. Minor subdivision approval shall be deemed to be final approval of the subdivision by the Planning Board, provided that the Planning Board may condition such approval on terms ensuring the provisions of improvements pursuant to § 132 30 of this Article.

Preliminary Subdivision (10 or fewer lots)

Upon the submission of a complete application for a subdivision of ten (10) or fewer lots, or a request for review pursuant to T.C. 132 7G the Planning Board shall grant or deny preliminary approval within forty five (45) days of the date of such submission or within such further time as may be consented to by the developer.

Preliminary Subdivision (more than 10 lots)

Upon the submission of a complete application for a subdivision of more than ten (10) lots, the Planning Board shall grant or deny preliminary approval within ninety five (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 to the subdivision.

Final Subdivision

Final approval shall be granted or denied within forty five (45) days after submission of a complete application, or within such further time as may be consented to by the applicant. Failure of the Planning Board to act within the period prescribed shall constitute final approval and a certificate of the Director of Planning & Engineering or designee 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.

[Amended 1-25-99 by Ord. No. 99-4]

Variances

The Board of Adjustment shall render a decision not later than one hundred twenty (120) days after the date (1) an appeal is taken from the decision of the Director of Planning & Engineering or designee or (2) the submission of a complete application for development to the Board of Adjustment. Failure of the Zoning 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.

[Amended 1-25-99 by Ord. No. 99-4]

§ 132-45 Expiration of Variances.

Any variance from the terms of the zoning ordinance hereafter granted by the Board of Adjustment, permitting the creation or alteration of any structure or structures or permitting a specified use of any structure or any property in a district restricted against such use, shall expire by limitation unless construction or alteration or use shall have been actively commenced as permitted by such variance within three (3) years from the date of adoption of the resolution by the Zoning Board, except as otherwise provided for by the granting authority; provided, however, that the Zoning Board is hereby granted the authority to grant a one year extension, provided that the applicant for such extension shall give prior notice of this application requesting such extension to those persons entitled thereto pursuant to Section 11 of this chapter; provided, however, that such period of limitation herein provided shall be tolled from the date of appeal of the decision to any court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.

§ 132-46 Authorized Exceptions and Waivers.

The Board, when acting upon applications for preliminary or minor subdivision approval or preliminary site plan or modification of such approvals previously granted, shall have the power to grant such exceptions from the requirements for subdivision approval or site plan approval, as the case may be, as may be reasonable and within the general purpose and intent of the provisions of subdivision and site plan review and approval, if literal enforcement of one (1) or more provisions of this chapter is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.

Where an applicant desires the Board to waive any requirements of subdivision or site plan approval, the applicant shall, at the time when it files its application for development, in writing, designate such requirement waivers thereof with respect to its particular applications. The Director of Planning and Engineering or his designee shall review such request and shall report thereon to the Board with recommendations. The Board shall review and determine such request at a public meeting.

Nothing contained herein shall prohibit the Board from granting any exceptions as described herein at the hearing on the application despite the applicant's failure to request such waivers in its application for development.

Nothing contained herein shall relieve the applicant from following all procedures necessary for the granting of a bulk or use variance, where applicable.

§ 132-47 Effect of Preliminary Approval.

[Amended 6-10-92 By Ord. No. 92-19]

Preliminary approval of a major subdivision pursuant to P.L. 1975, c. 291 (C. 40:55D 48) or of a site plan pursuant to P.L. 1975, c. 291 (C. 40:55D 46) shall confer upon the applicant the following rights for a three year period from the date on which the resolution of preliminary approval is adopted.

That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layout 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 P.L. 1975, c. 291 C. 40:55D-41; except, however, 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.

That the applicant may submit for final approval on or before the expiration date of preliminary approval the whole or section or sections of the preliminary subdivision plat or site plan, as the case may be.

That the applicant may apply for and the Planning Board may grant extensions on such preliminary approval for additional periods of at least one (1) year, but not to exceed a total extension of two (2) years, provided that if the design standards have been revised by ordinance, such revised standards may govern.

In the case of a subdivision of or site plan for an area of fifty (50) acres or more, the Planning Board may grant the rights referred to in Subsections A, B and C above for such period of time, longer than three (3) 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 for thereafter and the Planning Board may thereafter grant an extension 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, 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 may govern.

Whenever the Planning Board grants an extension of preliminary approval pursuant to subsection C or D of this section and preliminary approval has expired before the date on which the extension is granted, the extension shall begin on what would otherwise be the expiration date. The developer may apply for the extension either before or after what would otherwise be the expiration date.

[Added 6-10-92 by Ord. No. 92-19]

The Planning Board shall grant an extension of preliminary approval for a period determined by the Board but not exceeding one year from what would otherwise be the expiration date, if the developer proves to the reasonable satisfaction of the Board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued the required approvals. A developer shall apply for the extension before (1) what would otherwise be the expiration date of preliminary approval or (2) the 91st day after the developer receives the last legally required approval from other governmental entities, whichever occurs later. An extension granted pursuant to this subsection shall not preclude the Planning Board from granting an extension pursuant to subsection C and D of this section.

[Added 6-10-92 by Ord. No. 92-19]

§ 132-48 Effect of Final Approval.

[Amended 6-10-92 by Ord. No. 92-19]

Site Plan or Major Subdivision.

The zoning requirements applicable to the preliminary approval first granted and all other rights conferred upon the developer pursuant to P.L. 1975, c. 291 (C. 40:55D 49), whether conditionally or otherwise, shall not be changed for a period of two (2) years after the date on which the resolution of final approval is adopted; provided that, in the case of a major subdivision, the rights conferred by this section shall expire if the plat has not been duly recorded within the time period provided in section 42 of P.L. 1975, c. 291 (C. 40:55D 54). If the developer has followed the standards prescribed for final approval and, in the case of a subdivision, has duly recorded the plat as required in section 42 of P.L. 1975, c. 291 (C. 40:55D 54), the Planning Board may extend such period of protection for extensions of one (1) year but not to exceed three (3) extensions. Notwithstanding any other provisions of this chapter, the granting of final approval terminates the time period of preliminary approval pursuant to section 37 of P.L. 1975, c. 291 (C. 40:55D 49) for the section granted final approval.

[Amended 6-10-92 by Ord. No. 92-19]

In the case of a subdivision or site plan for a planned unit development or planned unit residential development or residential cluster of fifty (50) acres or more or conventional subdivision or site plan for one hundred fifty (150) acres or more, the Planning Board may grant the rights referred to in Subsection A of this section for such period of time, longer that two (2) years, as shall be determined by the Planning Board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under final approval, (2) economic conditions and (3) 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 (1) the number of dwelling units and nonresidential floor area permissible under final approval, (2) the number of dwelling units and nonresidential floor area remaining to be developed, (3) economic conditions and (4) the comprehensiveness of the development.

Whenever the Planning Board grants an extension of final approval pursuant to subsection 1 or 2 of this section and final approval has expired before the date on which the extension is granted, the extension shall begin on what would otherwise be the expiration date. The developer may apply for the extension either before or after what would otherwise be the expiration date.

[Added 6-10-92 by Ord. No. 92-19]

The Planning Board shall grant an extension of final approval for a period determined by the Board but not exceeding one year from what would otherwise be the expiration date, if the developer proves to the reasonable satisfaction of the Board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued these approvals. A developer shall apply for the extension before (1) what would otherwise be the expiration date of final approval or (2) the 91st day after the developer receives the last legally required approval from other governmental entities, whichever occurs later. An extension granted pursuant to this subsection shall not preclude the Planning Board from granting an extension pursuant to subsection 1 or 2 of this section.

[Added 6-10-92 by Ord. No. 92-19]

Minor Subdivision.

[Added 6-10-92 by Ord. No. 92-19]

Approval of a minor subdivision shall expire 190 days from the date on which the resolution of municipal approval is adopted unless within such period a plat in conformity with such approval and the provisions of the "Map Filing Law," P.L. 1960, c. 141 (C. 46:23-9.9 et seq.), or a deed clearly describing the approved minor subdivision is filed by the developer with the county recording officer, the municipal engineer and the municipal tax assessor. Any such plat or deed accepted for such filing shall have been signed by the chairman and secretary of the Planning Board.

The zoning requirements and general terms and conditions, whether conditional or otherwise, upon which minor subdivision approval was granted, shall not be changed for a period of 2 years after the date on which the resolution of minor subdivision approval is adopted; provided the approved minor subdivision shall have been duly recorded as provided in this chapter.

The Board may extend the 190-day period for filing a minor subdivision plat or deed pursuant to this section if the developer proves to the reasonable satisfaction of the Board (1) that the developer was barred or prevented, directly or indirectly, from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities and (2) that the developer applied promptly for and diligently pursued the required approvals, as determined by the Board. The developer may apply for the extension either before or after what would otherwise be the expiration date.

The Board shall grant an extension of minor subdivision approval for a period determined by the Board but not exceeding one year from what would otherwise be the expiration date, if the developer proves to the reasonable satisfaction of the Board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued the required approvals. A developer shall apply for the extension before (1) what would otherwise be the expiration date of minor subdivision approval or (2) the 91st day after the developer receives the last legally required approval from other governmental entities, whichever occurs later.

§ 132-48.1 Submission of Final Plat.

[Added 11-12-91 by Ord. No. 91-111; amended 6-10-92 by Ord. No. 92-19]

Upon final approval, the final plat shall be signed by the Chairman and Secretary of the Planning Board, provided that the subdivider has submitted a final plat reflecting compliance with all conditions and requirements of final subdivision approval set forth by the Planning Board and further provided that submission of the final plat for signature by the Chairman and Secretary of the Planning Board is made within ninety (90) days of the date of Planning Board approval.

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 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. The Planning Board may extend the 95-day or 190-day period if the developer proves to the reasonable satisfaction of the Planning Board (1) that the developer was barred or prevented, directly or indirectly, from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities and (2) that the developer applied promptly for and diligently pursued the required approvals. The length of the extension shall be equal to the period of delay caused by the wait for the required approvals, as determined by the Planning Board. The developer may apply for an extension either before or after the original expiration date.

After filing the plat with the County the subdivider shall submit a signed and sealed translucent tracing and a signed and sealed cloth copy of the plat to the Department of Planning and Engineering.

At the time the Final Plat is submitted for signatures of Municipal Officials, the applicant shall submit a CAD-generated data file(s), directly translatable into an identical image of the File Map, conforming to the following:

Media:	The file(s) shall be submitted upon diskette(s), either 5.25"/1.2MG or 3.50"/1.44Mb, formatted for DOS Version 3.31 or later based IBM PC's and PC compatibles. [Amended 6-10-92 by Ord. No. 92-19]
Format:	The file shall be either:
	a.	An AutoCAD drawing file (i.e., a "DWG" Extension file) compatible with AutoCAD Release 11 or later; [Amended 6-10-92 by Ord. No. 92-19]
	b.	An ACSII Drawing Interchange File (i.e. a ".DXF" Extension file) compatible with AutoCAD Release 11 or later. [Amended 6-10-92 by Ord. No. 92-19]

At the discretion of the applicant, Department of Planning & Engineering staff can be requested to do the required conversion to CAD at a fee in accordance with the Township Fee Schedule contained in Town Code Section 132-32.

§ 132-49 Compensation for Reserved Lands.

Whenever the East Brunswick Planning or Zoning Board shall reserve the location and extent of such street, ways, basins or areas shown on a plat submitted for subdivision or site plan approval, pursuant to N.J.S.A. 40:55D-44, the developer shall be entitled to just compensation for actual loss found to be caused by the temporary reservation and deprivation of use. Unless a lesser amount has previously been mutually agreed upon, just compensation shall be deemed to be the fair market value of an option to purchase land reserved for the period of reservation, including but not limited to the real property taxes apportioned to the land reserved and prorated for the period of reservation. The developer shall be compensated for the reasonable increased costs of legal, engineering or other professional services incurred in connection with obtaining subdivision approval or site plan approval, as the case may be, caused by the reservation. The township shall obtain an appraisal of the value of the option from a licensed real estate appraiser and shall disclose the fair market value of the option to the developer, provided that the developer shall also obtain a fair market value of the option and disclose the same to the township. The township shall require verification of increased costs of legal, engineering or other professional services incurred by the developer. In the event that the land which is reserved shall be the subject of an application for state or federal funding, all applicable state and federal laws and regulations shall govern the timetable which shall be implemented by the township.

§ 132-50 Conditional Approvals.

In the event that a developer submits an application for development 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 be 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 this chapter, and, if such application for development complies with the requirements of this chapter, the approving authority shall approve such application conditioned on removal of such legal barrier to development.

In the event that development proposed by an application for development requires an approval by a governmental agency other than the approving authority, the approving authority shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that the approving authority shall make a decision on any application for development 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 approving authority is prevented or relieved from so acting by the operation of law.

§ 132-51 Suspension of Periods 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 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 chapter shall be suspended for the period of time said legal action is pending or such directive or order is in effect.

§ 132-52 Common Open Space Requirements.

Public Ownership.

Common open space shall remain in private ownership, unless the appropriate Board determines that public ownership is desirable and unless the subdivider agrees to the necessary land donation, in which case ownership shall be in the Township of East Brunswick, or in such other public body as shall be deemed appropriate, provided that the township or such other public body shall approve such public ownership. In the event that the Board shall determine that there shall be public ownership of common open space but the subdivider or the public body shall not agree to the same or in the event that the Board shall not approve the form of private ownership of common open space, the Board may disapprove the application for subdivision with the reduction in lot area provisions of Article III of the Zoning Chapter. Standards for the Board determination as to public ownership shall include, but not be limited to, the following:

The need for public open space or recreational facilities in the areas determined by the Township Master Plan.

The potential for an open space connection between two (2) public open space areas.

The desirability of public access due to the peculiar physical characteristics of the area which make it suitable for public open space uses not otherwise available in that area.

Soil or vegetation characteristics of the area that provide a desirable public wildlife refuge.

All common open space shown on a preliminary plat shall be included in the first section submitted for final approval. However, in the case of a subdivision to be developed over a period of years, the Board may permit the total area proposed for common open space to be divided among the sections submitted for final plat approval, in which case the common open space appurtenant to each such section shall comply with the minimum common open space requirements as applied to each section.

Failure to maintain common open space. In the event that the organization established to own and maintain common open space, or any successor organization, shall at any time after its formation fail to maintain the common open space in reasonable order and condition in accordance with the approval granted by the Planning Board, the municipality may serve written notice upon such organization or upon the residents and owners of the cluster subdivision setting forth the manner in which the organization has failed to maintain the common space in reasonable condition. Said notice shall include a demand that such deficiencies of maintenance be cured within 30 days thereof and shall state the date and place of a hearing thereon, which hearing shall be held within 14 days of the notice. At such hearing, the municipality may modify the terms of the original notice as to the deficiencies and may give an extension of time within which they shall be cured. If the deficiencies set forth in the original notice or in the modifications thereof shall not be cured within 30 days or any extension thereof, the municipality, in order to preserve the taxable values of the properties within the cluster subdivision and to prevent the common open space from becoming a public nuisance, may enter upon said common open space and maintain the same for a period of one year. Said entry and maintenance shall not vest in the public any rights to use the common open space except when the same is voluntarily dedicated to the public by the residents and owners. Before the expiration of said year, the municipality shall, upon its initiative or upon the request of the organization theretofore responsible for the maintenance of the common open space, call a public hearing upon notice to such organization or to the residents and owners of the cluster subdivision, to be held by the Health Officer, at which hearing such organization or the residents and owners of the cluster subdivision shall show cause why such maintenance by the municipality shall not, at the election of the municipality, continue for a succeeding year. If the Health Officer shall determine that such organization is not ready and able to maintain said common open space in a reasonable condition, the municipality may, in its discretion, continue to maintain said common open space during the next succeeding year and, subject to a similar hearing and determination, in each year thereafter. The decision of the Health Officer in any such case shall constitute a final administrative decision subject to judicial review. The cost of such maintenance by the municipality shall be assessed ratably against the properties within the cluster subdivision that have a right of enjoyment of the common open space and shall become a tax lien on said properties. The municipality, at the time of entering upon said common open space for the purpose of maintenance, shall file a notice of such lien in the office of the County Clerk upon the properties affected by such lien within the cluster subdivision.

§ 132-53 Performance and Maintenance Guarantees.

[Amended 6-10-92 by Ord. No. 92-19; 5-10-93 by Ord. No. 93-21; 10-2-95 by Ord. No. 95-34; 12-9-2019 by Ord. No. 19-36]

Before recording final subdivision plats or recording of minor subdivision deeds or as a condition of a final site plan approval or as a condition to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65, the Township may require and shall accept, in accordance with the standards adopted herein, for the purpose of assuring the installation and maintenance of certain on-tract public improvements:

Performance guarantee required.

The furnishing of a performance guarantee in favor of the Township of East Brunswick in an amount equal to 120% of the cost of only those improvements required by an approval or developer's agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed, which cost shall be determined by the developer and approved by the Municipal Engineer, according to the method of calculation set forth in N.J.S.A. 40:55D-53.4, for the following improvements as shown on the approved plans or plat: streets, pavement, gutters, curbs, sidewalks, streetlighting, street trees, surveyor's monuments, as shown on the final map and required by the Map Filing Law, P.L. 1960, c. 141,[1] water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements.

[1]

Editor's Note: See N.J.S.A. 46:26b-1 et seq.

The performance guarantee may also be required to include, at the discretion of the Township, a guarantee for the installation of privately owned perimeter buffer landscaping. A separate performance guarantee, if required, shall be posted for the privately owned perimeter buffer landscaping or may be included in the performance guarantee for the bonded public improvements. The developer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee for review and approval by the Municipal Engineer, which improvements shall be appended to each performance guarantee posted by the obligor.

The furnishing of a safety and stabilization guarantee in favor of the Township of East Brunswick to ensure that the Township has an adequate guarantee to return the property that has been disturbed to a safe and stable condition or otherwise implement measures to protect the public from access to an unsafe or unstable condition. The Township shall be permitted to access the guarantee when site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure, and work has not recommenced within 30 days following the provision of written notice by the Township to the developer of the Township's intent to claim payment under the guarantee. At the developer's option, the safety and stabilization guarantee may be included as a line item for safety and stabilization in the performance guarantee rather than in the form of a separate guarantee. The amount of the safety and stabilization guarantee shall be calculated pursuant to N.J.S.A. 40:55D-53.4 as follows:

$5,000 for the first $100,000 of bonded improvement costs; plus

2.5% of bonded improvement costs in excess of $100,000 up to $1,000,000; plus

1% of bonded improvement costs in excess of $1,000,000.

Form of guarantee.

The performance guarantees shall consist of cash or a certified check for not more than 10% of the estimated cost of the improvements, and the balance of the cost shall be evidenced by a corporate surety performance bond issued by a corporation authorized to issue bonds in the State of New Jersey. If the developer chooses, the entire amount may be posted with the Township in cash.

The approving authority shall, for the purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53a), accept a performance guarantee or maintenance guarantee which is an irrevocable letter of credit if it:

Constitutes an unconditional payment obligation of the issuer running solely to the municipality for an express initial period of time in the amount determined pursuant to Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53);

Is issued by a banking or savings institution authorized to do and doing business in this state with an AA rating;

Is for a period of time of at least one year; and

Permits the municipality to draw upon the letter of credit by certifying abandonment (default) of the project by passing of a resolution of the governing body or if the obligor fails to furnish another letter of credit which complies with the provisions of this section 30 days or more in advance of the expiration date of the letter of credit or such longer period in advance thereof as is stated in the letter of credit.

The performance guarantees shall be approved by the Municipal Attorney as to form, sufficiency and execution. The letter of credit shall be approved by the Township Finance Officer.

The time allowed for installation of the bonded improvements for which the performance guarantee has been provided may be extended by the governing body by resolution. As a condition or part of any such extension, the amount of any performance guarantee 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 by the developer and approved by the Municipal Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.

If the required bonded improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Township for the reasonable cost of the improvements not completed or corrected, and the Township may, either prior to or after the receipt of the proceeds thereof, complete such improvements.

Approved bonded improvements.

Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements and the connection of same to the public system, the obligor may notify the governing body, in writing, by certified mail addressed in care of the Municipal Clerk, of the completion or substantial completion of bonded improvements and shall send a copy thereof to the Municipal Engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon, the Municipal Engineer shall inspect all bonded improvements of which such notice has been given and shall file a detailed report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request, indicating either approval, partial approval or rejection of such improvements, with a statement of reasons for any rejection. The report shall identify each bonded improvement determined to be completed and satisfactory, together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory bonded improvement, in accordance with the previously prepared itemized cost estimate.

The Municipal Engineer shall schedule a public hearing, to be held at 8:00 p.m. on a weekday. The Municipal Engineer shall inform the obligor or developer of the date of the hearing, and the obligor or developer shall be required to provide notice of at least 15 days by certified mail, return receipt requested, to all owners of land within the subdivision that there will be a public hearing concerning the public improvements covered by the performance guarantee. The notice will specify whether the obligor or developer seeks to release the performance guarantees. The obligor or developer shall cause to be published a notice of the public hearing in a newspaper circulated within the Township of East Brunswick, said publication to be at least 10 days prior to the date of the proposed hearing. The hearing shall be conducted by the Municipal Engineer. The obligor or developer and its engineer are required to be present. At the hearing, members of the public shall be afforded the right to speak with regard to the public improvements. A list of concerns expressed by the homeowners shall be made part of a punch list to be included in a detailed report which the Municipal Engineer shall file, in writing, with the governing body. Following the inspection of the improvements by the Municipal Engineer and the public hearing, the Municipal Engineer will include in his report to the governing body a recommendation indicating either approval, partial approval or rejection of such improvements, with a statement of reasons for any rejection. The cost of the improvements as approved or rejected shall be set forth by the Municipal Engineer. Included within the report will be a synopsis of the public hearing.

The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Municipal Engineer or reject any or all of these bonded improvements upon the establishment in the resolution of cause for rejection and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee with respect to those approved bonded improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the total performance guarantee and safety and stabilization guarantee posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guarantee shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction.

For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate which formed the basis of the performance guarantee, and appended to the performance guarantee pursuant to Subsection A of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee and safety and stabilization guarantee to ensure completion and acceptability of bonded improvements, as provided above.

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.

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 Municipal Engineer.

If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection A. of this section; and the cost of applying to the court, including reasonable attorneys' fees, may be awarded to the prevailing party.

Inspection fees.

The obligor shall reimburse the municipality for reasonable inspection fees paid to the Municipal Engineer for the foregoing inspection of the improvements, which fees shall not exceed the sum of the amount set forth in N.J.S.A. 40:55D-53. The municipality may require the developer to post the inspection fees in escrow in an amount calculated as follows: except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements subject to a performance guarantee, plus an amount not to exceed 5% of the cost of private site improvements not subject to a performance guarantee, which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4. If the inspection fees required are less than $10,000, the developer shall have the option of paying same in two equal installments with the initial amount deposited to be 50% of the inspection fees. When the balance of inspections fees on deposit reaches 10%, the remaining installment shall be due and payable. If the inspection fees required are $10,000 or greater, the developer shall have the option of paying same in up to four installments with the initial amount deposited to be 25% of the inspection fees. When the balance of inspection fees on deposit reaches 10%, the developer shall make additional deposits of 25% of the inspection fees.

If the Township determines that the amount in escrow for the payment of inspection fees, as calculated herein, is insufficient to cover the cost of additional required inspections, the Township may require the developer to deposit additional funds in escrow, provided that the Township delivers to the developer a written inspection escrow deposit request, prepared by the Municipal Engineer, which informs the developer of the need for additional inspections, details the items or undertakings that require inspections, estimates the time required for those inspections, and estimates the cost of performing those inspections.

In the event that final approval is by stages or sections of development pursuant to Subsection (a) of Section 29 of the Municipal Land Use Law (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.

If the property or any part of same is sold or otherwise conveyed to a successor developer prior to the completion and acceptance of all improvements, an assignment of developer's agreement and new performance, maintenance or other guarantees shall be required from the new owner or successor developer. Upon the transfer of ownership of property that is the subject of a construction permit, and prior to beginning or continuing work authorized by the construction permit, the new owner or successor developer shall file with the Building Department an application for a permit update to notify the Building Department of the name and address of the new owner or successor developer and of all other changes to information previously submitted to the Building Department. The Building Department shall not approve the application for a permit update until it receives notification from the governing body, or its designee, that the new owner or successor developer has furnished adequate replacement performance, maintenance or other guarantees and assignment of developer's agreement.

Dedicated improvements. To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to this chapter, to accept dedication for public use of streets or roads and any other improvements made thereof according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Municipal Engineer. Prior to acceptance, the developer shall be responsible for all maintenance of improvements, including streets and roads, streetlighting, snow plowing, curbs and sidewalks, waterlines, storm sewers and any other improvements which were installed. Nothing contained herein shall relieve the developer of the obligation to post maintenance guarantees in accordance with all requirements.

Maintenance guarantee.

Upon completion of all the improvements in a good and workmanlike manner and in accordance with all rules, regulations, standards, specifications and ordinances of the Township and the filing of as-built drawings, the Township will accept the improvements subject to the deposit and posting of maintenance guarantees in an amount equal to 15% of the estimated cost of construction, which cost shall be determined by the Municipal Engineer. The security for maintenance shall be held by the municipality in accordance with an escrow agreement similar to the escrow agreement referred to above. Maintenance guarantees shall be approved by the Municipal Attorney as to form, sufficiency and execution, and such guarantee shall run for a period of two years. Under no circumstances shall the Township pay or be liable for any interest on any funds deposited with the Township as a performance or maintenance guarantee.

No maintenance bond shall be accepted for any item that has further stages of work or which will need to be altered or reworked.

Uncompleted improvements. If, in the event of inclement weather or construction delays not occasioned by any act of the developer, subdivider, builder, or successor, it shall be impossible to install the required sidewalks, streetlighting, surveyors' monuments, shade trees and landscaping at the time that a certificate of occupancy is applied for, the applicant shall furnish the Director of Planning and Engineering with an acknowledgment executed by the prospective home buyer setting forth the improvements or portions thereof that are not as yet installed and that the home buyer is agreeable to taking title and possession of the dwelling in that condition in reliance upon the existing performance guarantees posted pursuant hereto and the terms and provisions of this subsection. Should those uncompleted improvements referred to above not be installed within six months after the date of the issuance of the certificate of occupancy, the Township Council of the Township of East Brunswick, upon the recommendation of the Municipal Engineer, may authorize, by resolution, that the performance guarantees posted pursuant hereto be utilized by the Township of East Brunswick for the purpose of installing such uncompleted improvements.

§ 132-53.1 Deposits Required to Offset Costs of Inspections and Tests.

[Added 11-12-91 by Ord. No. 91-111; amended 5-10-93 by Ord. No. 93-21; 3-8-99 by Ord. No. 99-12; 4-28-03 by Ord. No. 03-15; 9-26-05 by Ord. No. 05-29]

Prior to construction of any of the improvements referred to above specifically, the commencement of any preparatory site work, including, but not limited to, clearance of the property, grading or excavation or the signing of the final subdivision or site plan, whichever occurs first, the developer shall deposit with the Township a sum equal to 5% of the cost of the improvements, but not more than $4,999, which shall be used to pay the costs of inspection and testing fees incurred by the Township. In the event that the costs of inspection and testing are less than the amount deposited, the balance shall be refunded to the subdivider. If the costs are greater than the amount deposited, the Township shall require additional deposits as necessary. The following fee schedule shall be charged:

Township employees.

Up to eight hours in a single weekday: $75 per hour.

Beyond eight hours in a single weekday: $112 per hour.

Saturday: $112 per hour.

Legal Township holiday: $187 per hour.

Inspection time will be rounded to the next half hour for billing purposes. Inspections for Saturdays and holidays must be preapproved by Assistant Township Engineer prior to scheduling.

Testing laboratory: cost to the Township.

Outside consulting services When the Township deems it necessary to retain outside professional services, the developer shall reimburse the Township for all reasonable professional consulting fees

For those subdivision and site plans 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 permit any construction requiring inspection if sufficient funds to pay for those inspections are not on deposit.

Construction within Township right-of-way: A right-of-way permit shall be required for all construction work located within the Township right-of-way, including sidewalks, curb aprons and curbs adjacent to roadways. The permit fee shall be $25.

§ 132-53.2 Inspections.

[Added 5-10-93 by Ord. No. 93-21; amended 10-2-95 by Ord. No. 95-34; 3-8-99 by Ord. No. 99-12; 7-7-08 by Ord. No. 08-12]

Prior to construction, the developer shall arrange for a preconstruction conference among the developers, contractor and Manager of Engineering Services or his/her designee. The Manager of Engineering Services shall be notified by certified mail by the developer at least five business days in advance of the planned commencement of construction activity.

No work shall be done without the appropriate valid construction permit from and inspection by the Township. The Manager of Engineering Services or his/her designee is authorized to issue a summons in the event any developer, agent, or corporation refuses to honor a stop-work notice. No underground installation shall be covered until inspected and approved. The Township Department of Planning and Engineering shall be notified 24 hours before each of the following phases of the work has been commenced so that the Township may inspect the work: pavement subgrade; curb and gutter forms; curbs and gutters; pavement (after each coat, in the case of priming and sealing); drainage pipes and other drainage structures before backfilling; shade trees and planting strips; street name signs; and monuments.

No work or construction of improvements requiring same day inspection by the Township shall be performed on Saturdays, Sundays, legal township holidays or at any other time or hours than those during which the East Brunswick Municipal Building is open to the general public without prior approval from the Department of Planning and Engineering. These items of work include, but are not limited to, pouring concrete, paving and pipe construction.

Prior to the issuance of any occupancy permits, the Manager of Engineering Services or his/her designee shall inspect the site to determine that all work shown on the approved site plan and/or subdivision plan has been completed, including, but not limited to, curbs, aprons, utilities, functioning water supply and storm drainage improvements to ensure proper drainage of the lot and surrounding land, fine grading of lots, clearing of sight triangles, soil stabilization, including topsoil and seeding, sidewalks and installation of the base course for the street including subgrade to serve the lot and structure for which the permit is requested. In addition, there shall be compliance with all township codes and provisions, including payment of all monies due.

[Amended 7-7-08 by Ord. No. 08-12]

Streets shall not receive finished surface course paving until all heavy construction is completed as determined by the Manager of Engineering Services or his/her designee. Shade trees shall not be planted until all grading and earthmoving is completed.

[Amended 7-7-08 by Ord. No. 08-12]

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 reasonable based on the approved development plans and documents.

[Added 10-2-95 by Ord. No. 95-34]

§ 132-54 As Built Requirements.

[Amended 10-15-01 by Ord. No. 01-33; 10-28-02 by Ord. No. 02-24; 9-27-10 by Ord. No. 10-22]

Prior to bond release for all residential improvements and all other improvements in the public right of way or public easements, "as built" drawings shall be submitted to the Township Engineer. As built plans shall be submitted on plastic film as well as a CAD generated data file (compatible with the most current version of AutoCAD) with a scale of no greater than 1" = 50'. All submittals must be referenced to the N.J. State Plane coordinate system of 1983 and the NAVD of 1988. As built plans shall include the following:

All public and private right of ways, property lines and easements.

Monuments plus at least three ties from permanent fixtures (i.e. manholes, inlets, building corners, etc.). Utility poles are not acceptable. If a building corner is used, the entire footprint of the building shall be shown.

Pavement width.

Pavement cross section elevations every 50 feet, except when roadway centerline profiles are 1 percent or less, pavement cross sections shall be taken every 25 feet.

Lot and block numbers, building numbers and addresses of each living unit, commercial space or industrial use.

Off-site improvements, if any pursuant to the requirements of item 7 below.

Utilities.

[Amended 9-27-10 by Ord. No. 10-22]

Drainage System.

Size, length, type and class of pipe.

Manholes, inlets, headwalls and all other drainage structures.

Invert, grate and top of curb elevations for inlets; invert and rim elevations for manholes; invert and top elevation on other structures.

Water Lines.

Size, type and class of pipe.

Hydrants and guard valve location with measurement from hydrant.

At least three ties to water valves from permanent fixtures (i.e. manholes, inlets, building corners, etc.). Utility poles are not acceptable. If a building corner is used, the entire footprint of the building shall be shown.

Sanitary Sewer System.

[Amended 9-27-10 by Ord. No. 10-22]

Size, length, type and class of pipe.

Manholes and other structures or facilities.

Invert and rim elevations including all incoming and outgoing pipes.

iv.

Confirmation of watertight locking covers where required by site plan, subdivision or Sewer Utility approvals.

[Amended 9-27-10 by Ord. No. 10-22]

Certification by a New Jersey Licensed Surveyor or New Jersey Professional Engineer that the as built plan is complete and correct.

Prior to release of improvement inspection escrows for all non-residential improvements and bond release for all other improvements in the public right-of-way or public easements, "as-built" drawings shall be submitted to the Township Engineer. As-built plans shall be submitted on plastic film as well as a CAD generated data file (compatible with the most current version of AutoCAD) with a scale of no greater than 1" = 50'. All submittals must be referenced to the N.J. State Plane coordinate system of 1983 and the NAVD of 1988. As built plans shall include the following:

All public and private right-of-ways, property lines and easements.

Contours at 1 foot intervals based on National Geodetic vertical Datum 1988 with spot elevations at building corners and areas where slopes are less than 1%.

Lot and block numbers, building numbers and addresses of each living unit, commercial space or industrial use.

Off-site improvements, if any pursuant to the requirements of item 6 below.

Utilities

Drainage Systems

Size, length, type and class of pipe.

Manholes, inlets, headwalls and all other drainage structures.

Invert, grate and top of curb elevations for inlets; invert and rim elevations for manholes; invert and top elevation on other structures.

Water Lines.

Size, type and class of pipe.

Hydrants and guard valve location with measurement from hydrant.

Sanitary Sewer System.

Size, length, type and class of pipe.

Manholes and other structures or facilities.

Invert and rim elevations including all incoming and outgoing pipes.

iv.

Confirmation of watertight locking covers where required by site plan, subdivision or Sewerage Authority approvals.

All planimetric features of the site, including but not limited to: building footprint(s), curbs, sidewalks, retaining walls, sheds, fences, etc.

Certification by a New Jersey Licensed Surveyor or New Jersey Professional Engineer that the as-built plan is complete and correct.

§ 132-55 Apportionment of Costs for Off-Tract Improvements.

A developer, as a condition for approval of a subdivision or site plan, in accordance with N.J.R.S. 40:55D-42, shall be required to pay only his pro rata share of the cost of providing reasonable and necessary street improvements and water, sewerage and drainage facilities and easements therefor, located outside the property limits of the subdivision or development but necessitated or required by construction or improvements within such subdivision or development. The pro rata share shall be determined by analyzing the circulation plan element of the East Brunswick Master Plan showing the location and types of facilities for all modes of transportation required for the efficient movement of people and goods into, about and through the municipality, as well as the utility service plan element of the East Brunswick Master Plan analyzing the need for and showing the future general location of water supply and distribution facilities, drainage and flood control facilities, sewage and waste treatment, solid waste disposal and provision for other related utilities. Consideration shall be given by the Planning Board to the question of whether or not the need for the off-tract improvement was created by the proposed development of land and whether the required improvement not only benefits the developer's tract but other properties as well. The Board shall also determine the related common area which is to be serviced or benefited by the facilities or improvements required.

The developer shall be required to pay the difference between the cost of the off-tract improvement and the total amount by which all properties served thereby, including the developer's property, have been specifically benefited by the improvement. Further, if the off-tract improvement is to be constructed by the municipality as a general improvement or if the improvement is to be constructed by a developer with a provision for later reimbursement by the municipality, then the developer shall not be charged with the amount by which the developer's property was specially benefited by the improvement. In the event that the municipality shall construct the off-tract improvement as a local improvement under N.J.R.S. 40:56-1 et seq., the developer may be called upon to pay, in addition to the amount set forth above, the amount by which the subject property was specially benefited by the improvement.

Prior to the Board making a determination of the amount to be paid by the developer, the governing body shall make a determination whether the off-tract improvement is to be constructed by the municipality as a general improvement or as a local improvement or whether it is to be done by the developer with a formula providing for partial reimbursement if the improvement specially benefits properties other than the subdivision. Once that decision has been made, the Planning Board shall be required to estimate, with the aid of the Municipal Engineer, the Director of Finance and the Board of Special Assessments the cost of the improvement and the amount by which all properties to be serviced thereby, including the subject property, will be specially benefited therefrom.

When the foregoing has been determined, the developer shall be required to provide, as a condition for approval of his subdivision or site plan application, a bond, or a cash deposit in lieu thereof, not exceeding ten percent (10%) of the cost of the improvements, as determined by the Planning Board, to ensure payment to the municipality of one (1) of the following amounts:

If the improvement is to be constructed by the municipality as a general improvement, an amount equal to the difference between the estimated cost of the improvement and the estimated total amount by which all properties to be serviced thereby, including the subject property, will be specially benefited by the improvement.

If the improvement is to be constructed by the municipality as a local improvement, then, in addition to the amount referred to in Subsection C(1), the estimated amount by which the subject property will be specially benefited by the improvement.

If the improvement is to be constructed by the developer, an amount equal to the estimated cost of the improvement.

After the improvement is completed, the estimated amounts shall be redetermined to the end that the developer will be required to pay his appropriate share of the cost thereof.

The standards set forth above shall not be altered subsequent to preliminary approval by a developer.

Where a developer pays the amount determined as his pro rata share under protest, he shall institute legal action within one (1) year of such payment in order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount, in accordance with N.J.S.A. 40:55D-42.

§ 132-55.1 Street Lighting.

[Added 6-10-92 by Ord. No. 92-19]

If an approving authority includes as a condition of approval of an application for development pursuant to P.L. 1975, c. 291 (C. 40:55D-1 et seq.) the installation of street lighting on a dedicated public street connected to a public utility, then upon notification in writing by the developer to the approving authority and governing body of the municipality that (1) the street lighting on a dedicated public street has been installed and accepted for service by the public utility and (2) that certificates of occupancy have been issued for at least 50% of the dwelling units and 50% of the floor area of the nonresidential uses on the dedicated public street or portion thereof indicated by section pursuant to section 29 of P.L. 1975, c. 291 (C. 40:55D-38), the municipality shall within 30 days following receipt of the notification, make appropriate arrangements with the public utility for, and assume the payment of, the costs of the street lighting on the dedicated public street on a continuing basis. Compliance by the municipality with the provisions of this section shall not be deemed to constitute acceptance of the street by the municipality.

§ 132-56 Building Permits.

[Amended 2-11-91 by Ord. No. 91-17; 4-20-09 by Ord. No. 09-11]

Building Permits. No building permit shall be issued by the Construction Official until final approval has been granted to the application for development.

At the time of issuance of any building permit, the building code official will provide written instruction on proper disposal and recycling of construction and demolition waste and furnish a Notification of Construction/Demolition Activity Form. The Form must be filled out by the permittee and faxed to the Middlesex County Division of Solid Waste Management (MCDSWM) within 48 hours of the issuance of a municipal permit.

[Added 11-19-07 by Ord. No. 07-25]

Building Lots to Abut Street. No permit for the erection of a building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure. Such lot shall be on an existing state, county or municipal street or highway or on a street shown upon a plat approved by the appropriate Board or on a street on a plat duly filed in the office of a county recording officer prior to the passage of an ordinance under this chapter or any prior law which required prior approval of plats by the governing body or other authorized body. Before any such permit shall be issued, such street shall have been certified to be suitably improved to the satisfaction of the Township Council or such suitable improvement shall have been assured by means of a performance guarantee, in accordance with standards and specifications for road improvement approved by the Township Council as adequate in respect to the public health, safety and general welfare of a special circumstance of the particular street.

[Amended 11-19-07 by Ord. No. 07-25]

No building permits shall be issued by the Chief Construction Official for any home in a subdivision until final subdivision approval has been granted by the Planning Board.

[Amended 2-11-91 by Ord. No. 91-17; 11-19-07 by Ord. No. 07-25]

Conditional building permits. In the event that the Planning Board requires any correction or revision of the site plan, no building shall be issued a permit until the applicant has submitted a site plan corrected or revised in accordance with the decision of the Planning Board; provided, however, that the Chief Construction Official may, in his discretion, when a written request for modification has been submitted by the applicant, issue a conditional building permit, after the applicant has received site plan approval by the Planning Board but before the applicant has submitted corrected or revised site plans pursuant to the site plan approval granted by the Planning Board. The Chief Construction Official will base his decision on the following standards

[Added 4-20-09 by Ord. No. 09-11]:

That the applicant would suffer financial loss if permission to start construction is not granted.

That the applicant shall proceed at his own risk with the building operation and without assurance that a permit for the entire structure will be granted.

That permission to proceed with partial construction shall not be construed as authority to violate, cancel or set aside any of the provisions of the Code of the township, except as stipulated by modification or legally granted variation as described in approvals by township agencies.

That such conditional building permit shall be valid for a period of three (3) months from the date of issuance and shall not be renewed. At the expiration of such period, construction shall cease until such time as the applicant shall obtain a building permit in accordance herewith.

§ 132-56.1 Zoning Permits Required.

[Added 8-14-00 by Ord. No. 00-15; amended 4-9-12 by Ord. No. 12-02]

All fences six feet or less in height, all private pools as defined in § 195-1, new single-family dwellings, additions to a single-family dwelling over 150 square feet, signage unless exempt by § 228-252,, shed installations as defined in § 228-3 and new and additional impervious surfaces greater than 50 square feet in area shall require a zoning permit prior to the start of construction. No more than a total of 50 square feet of impervious surface may be added to property over a three-year period without first obtaining an impervious surface permit. Such permit shall be issued by the Zoning Officer or his/her designee.

[Amended 4-9-12 by Ord. No. 12-02; 1-24-2022 by Ord. No. 22-02]

All zoning permit applications shall be made to the Zoning Officer or his/her designee on forms provided by the Office.

The application fee for a zoning permit is $50.

[Amended 4-9-12 by Ord. No. 12-02; 8-13-18 by Ord. No. 18-18; 1-24-2022 by Ord. No. 22-02]

Zoning permits shall be valid for a period of one year from the date of issuance.

§ 132-57 Conditional Building Permits.

The Construction Official may issue a conditional building permit to any applicant who has received site plan or subdivision approval, but who has not yet submitted the completed revisions or corrections of the plats, plans and requisite documents, upon a showing by such applicant, in writing, that the failure to issue a building permit before such revisions and corrections can be completed will cause undue hardship in the development of this subject property or that other extenuating conditions exist which warrant the issuance of a conditional building permit. Such conditional building permit shall be valid for a period of three (3) months from the date of issuance and shall not be renewed. At the expiration of such period, construction shall cease until such time as the applicant shall obtain a building permit.

§ 132-58 Certificates of Occupancy.

[Amended 11-12-91 by Ord. No. 91-111; 6-10-92 by Ord. No. 92-19; 4-20-09 by Ord. No. 09-11]

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 Ordinance.

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 Ordinance.

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 Township 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 or improvements required as conditions of site plan approval may also be delayed if the Township Engineer warrants in writing to the Construction Official that the delay is in the best interests of the Township.

No certificate of occupancy shall be issued by the Chief Construction Official for any home in a subdivision until all the public improvements in the phase or section in which the certificate of occupancy is being requested (except for final paving course) are installed and the home is connected to all the utilities in accordance with the township regulations. This subsection shall apply in addition to any other requirements set forth in the building codes and any other Township ordinances relating to certificates of occupancy. Issuance of a certificate of occupancy contrary to this subsection shall be deemed an act of misfeasance by the issuing officer.

[Amended 11-12-91 by Ord. No. 91-111; 6-10-92 by Ord. No. 92-19]

The transfer of any home with the intention of occupancy or the occupancy of any home without a certificate of occupancy having been issued, in a subdivision or elsewhere, where all of the water mains, storm sewers, culverts, underground electrical and telephone conduits, street grading, curbs and street pavement (except for the final paving course) have not been installed in front of or on the building site or to the rear of the building site, shall be a violation, by the subdivider or seller and the purchaser or occupant, of this chapter. A subdivider or seller or an occupant or purchaser found guilty of violating this subsection shall be subject to a fine not to exceed five hundred dollars ($500.) or imprisonment for not more than ninety (90) days, or both.

During the period from late fall to early spring or at any other times of the year, it may not be feasible to install landscaping and minor construction details required by site plan approval due to inclement weather, unavailability of material or other reasons. The Director of Planning & Engineering may authorize the issuance of a certificate of occupancy where landscaping is not installed or minor construction details are not complete, provided that a cash deposit sufficient to accomplish all uncompleted work set forth on the site plan is posted with the Township of East Brunswick. The Director of Planning and Engineering will exercise his or her decision based on the following standards

[Added 4-20-09 by Ord. No. 09-11]

That the applicant would suffer severe financial loss unless a certificate of occupancy is issued and that a temporary certificate of occupancy would not suffice.

That the construction is of a minor nature, meaning it does not make up a large cost item in the overall site plan, and that the site can be used with the minor item omitted without endangering the health and welfare of the public or those using the premises.

That the weather conditions will make it unlikely that the landscaping, given all reasonable care, would survive.

That the sum deposited shall be in an amount sufficient to cover the cost of completing the work to be done, not to exceed 120% of the cost of installation, as estimated by the Township Engineer in accordance with the Municipal Land Use Law.

(e)

That the construction or the permanence of the construction would be jeopardized by the existing weather conditions.

(f)

The sum deposited as escrow shall also include an amount sufficient to cover the cost of all inspections and tests which are required in connection with the construction or installation of all public improvements and all work required by site plan approval but not completed at the time the certificate of occupancy is issued. In addition, the Director of Planning & Engineering or his or her designee(s) shall estimate the amount necessary to cover the pro rata share of the cost of providing reasonable protection for off-tract impact caused by site work on the subject premises, which escrow shall be released at such time as the Director of Planning & Engineering or his or her designee(s) is satisfied that the site has been constructed in such a way so as to protect against such off-tract impact.

The applicant must also execute an agreement to complete the work as soon as weather permits and in no instance after more than one hundred eighty (180) days from the date of the application. Failure to complete the work within one hundred eighty (180) days shall constitute sufficient authorization for the Director of Planning and Engineering to utilize the cash deposit and have all work completed as shown on the approved site plan.

[Added 4-20-09 by Ord. No. 09-11]

§ 132-58.1 Display of Certain Maps and Plans By Subdividers.

[Added 11-12-91 by Ord. No. 91-111]

All owners, developers and subdividers having an interest in a major subdivision in the Township of East Brunswick shall display within all of their sales offices or the sales office of any broker or agent engaged by them for the purpose of selling residential dwellings, the following:

The portion of the Middlesex County Master Plan showing the Township of East Brunswick.

The Master Plan of the Township of East Brunswick.

The Zoning Map of the Township of East Brunswick.

The Official Map of the Township of East Brunswick.

The above maps shall be at a scale of not less than one (1) inch to one thousand (1,000) feet.

The maps and plans shall be prominently displayed in an open and unobstructed manner in all sales offices and shall be shown to all prospective buyers.

The above maps will be available from the Township Engineer at a nominal charge.

In addition to the above maps, the approved site plan, preliminary subdivision map or final PURD plan (whichever is applicable) certified by the Planning Board Chairman and Secretary shall be displayed within all sales offices. Scale shall not be less than one (1") inch to fifty (50') feet.

All owners, developers and subdividers having an interest in a major subdivision or major residential site plan in the Township of East Brunswick shall display within all of their sales offices or the sales office of any broker or agent engaged by them for the purpose of selling residential dwellings the following:

A sales map in the sales office in a place that may be observed and reviewed by any person(s) calling at the office.

A copy, on standard legal size paper, in type or clear print, of any proposed protective or restrictive covenants and easements to be applied to all or any portion of lands within the subdivision.

A copy of any Board approved revisions to the site plan or subdivision and all approved revisions or field changes to construction plans. Any such revised item or plan sheet shall have a notation marked on the original document that it is "REVISED' as of (date). The corresponding item or revision sheet SHALL NOTE THERE ON THE FOLLOWING: "ORIGINAL DOCUMENT DATED (date) HAS BEEN REVISED ON (include all dates)."

A "public offering statement" for the entire development, if the tract of land is to be developed as a planned unit development, as that term is defined in the Municipal Land Use Act and filed with the New Jersey Department of Community Affairs.

(5)

A copy of the Environmental Risk Audit (ERA) as described in Section 132-I(2), below.

The sales map shall be based on the Official Tax Map information or some other similarly accurate base at the scale of not less than fifty (50) feet to an inch or greater throughout the map, which said scale shall be clearly indicated thereon and shall be consistent in all directions shown thereon. The map shall show the owner's approved subdivision and all lands contiguous thereto for a distance of one thousand (1,000) feet, within or without the Township of East Brunswick.

The sales map shall clearly show and include for the area within one thousand (1,000) feet of the subdivision in all directions the following information which shall be maintained current.

The location of proposed streets and the layout of proposed lots within the subdivision.

The location of all state, county and municipal roads in existence on the date of the final approval of the subdivision.

The location of all state, county and municipal roads proposed and approved by any governmental agency having jurisdiction to establish such roads. The location of all such roads shall be as shown on the Official Master Plan adopted by the appropriate agency of the state, county or municipality.

The location of all existing structures and wooded areas within the subdivision.

(5)

A designation of the zoning district to be subdivided and the zoning districts of all contiguous properties within the distance of one thousand (1,000) feet.

(6)

The location of all railroads and railroad rights-of-way for public utilities.

(7)

The location of all public or private utility plants; the location of all sanitary landfill and hazardous waste sites operations in existence or proposed; the location of all Superfund sites; the location and identification of all industrial, manufacturing and warehousing uses; the location of all hazardous (as defined in the New Jersey Hazardous Substances Labeling Act, N.J.S.A. 24:5A-1) uses which emit pollutants (as defined in N.J.S.A. 58:10A-3) into the air, (as defined in the Air Pollution Control Act, N.J.S.A. 26:2C-2) soil, or water - courses; and the location of all gas transmission lines.

(8)

The location of all schools, parks, playgrounds, public buildings and sidewalks.

(9)

The location of all streams, ponds and watercourses and a legend reference as to whether flood hazard insurance is required.

(10)

The location and description of any use approved by the Board of Adjustment or Planning Board during the previous three (3) years.

(11)

The location of all drainage ditches within the area shown on the sales map.

(12)

The size of each parcel in the subdivision to be sold, whether improved or unimproved.

(13)

A map legend setting forth the present tax, water and sewer rates of any public authority servicing the subdivision.

(14)

A map legend setting forth the phone numbers and extensions for the Township Clerk, Township Administrator, and Director of Planning.

(15)

The location of any and all structures proposed on each parcel.

SALES MAP RELATED DOCUMENTS INFORMATION; UPDATE; ENVIRONMENTAL RISK AUDIT.

The information to be depicted on the sales map shall be based on the most recent zoning and street maps, federal insurance rate maps, and the prospective development map on file with the office of the Director of Planning. The completed sales map shall be submitted for review to the Chief Construction Official prior to it being posted, who shall review it for compliance with the requirements of this Ordinance. There shall be a charge of one hundred dollars ($100.) for the review and certification of compliance by the Chief Construction Official, which shall be paid by check payable to the Township of East Brunswick at the time of submission for approval.

An Environmental Risk Audit (ERA) shall be conducted for all of the property which is the subject of the subdivision. The person or entity conducting the ERA shall have no personal or financial interest in the property or project. His/her qualifications shall be attached to the ERA. The ERA shall include a statement setting forth the use of the subject property for a period of 10 years prior to the application for subdivision (Historical Property Evaluation). If there is any evidence of environmental contamination, manufacturing, warehousing landfilling subsurface burying of materials or any other information which could affect the health, safety or welfare of persons exposed to the property, the details of same shall be set forth in the ERA. The ERA shall also reflect the results of on-site soil sampling and water testing and shall reflect all surface and groundwater contamination. The ERA shall contain a site contamination assessment, quantifying the potential risks in terms of the cost to remove contamination from the property. A copy of the ERA shall be filed with the Chief Construction Official, who shall review it for compliance with the requirements of this ordinance. There shall be a charge of one hundred ($100.) dollars for the review and certification of compliance, which shall be paid by check payable to the Township of East Brunswick at the time of submission for approval.

The Chief Construction Official or his/her designee shall review each sales map and any revisions to it or the other items required under Section 192-52F, G and H displayed pursuant to the terms of this ordinance not less than every three (3) months and shall require such additional information as he/she deem necessary to maintain these documents in an up-to-date condition. There shall be a charge for the inspection of the information which shall be twenty-five dollars ($25) per visit, made payable by check to the Township of East Brunswick. The Chief Construction Official may from time to time, as he/she deems necessary, direct the owner or seller to display additional information on the documents so that same may be maintained in an up-to-date condition. New information obtained by the owner or seller shall be included in the sales map or related documents within thirty (30) days of receipt of such information. The Chief Construction Official shall affix his/her approval, upon his/her satisfaction of the inspection of the documents, indicating the date thereof.

Certificate of compliance.

At or before the execution of the contract of sale for any lot within a subdivision, the seller shall obtain, on a form approved by the governing body, a certification from the purchaser that:

The sales map was on display and available for inspection on any occasion of his visit to the sales office.

He had a reasonable opportunity to study and review the sales map.

He had the opportunity to visit the site of the lot he is purchasing at least once before he executed the contract of sale.

He had the opportunity to review any protective or restrictive covenants and easements prior to the execution of the contract of sale.

(e)

He had the opportunity to review the construction plans for the structure he is buying and all related common elements.

(f)

The seller did not refuse or decline to answer any questions directed to him pertaining to the sales map or the protective or restrictive covenants or easements.

The seller shall file the certificate mentioned in Subsection A hereof with the Chief Construction Official within twenty (20) days of the full executive of the contract of sale.

Additional notice provisions.

In the event the owner or seller of land files an application to amend a previously received approval from the Zoning Board of Adjustment or Planning Board (Site Plan, subdivision or variances), including but not limited to recreation facilities, bikeways or trail, drainage, sewerage or open space easements, lighting details or other items deemed to be significant by the Director of Planning, each previous purchaser who is an owner at the time of such application and each contract purchaser of any such lot or unit within 200' of the proposed change shall be advised, in writing, by the developer by certified mail, return receipt requested, of the hearing date on such revisions and that a copy of the proposal is available for such review in the sales office and the office of the Director of Planning. Proof of service shall be required to be filed with the Chief Construction Official and with the Department of Planning.

Violations and penalties.

If any person engages in the sale of a lot or lots within a subdivision without first displaying the sales map and other related documents or the protective covenants of easements as required herein, the owner of the subdivision shall be subject to a fine for each such lot sold or contracted to be sold provided hereinafter.

The owner of a subdivision who shall fail to file the certification of compliance as required herein, or fails to disclose to the purchaser the information as provided by the representative of the Department of Planning, through his or the fault of any person engaging in the sale of lots on his behalf, shall be subject to a fine as provided for hereinafter.

Any person, firm or corporation found guilty in the Municipal Court of the Township of East Brunswick of a violation of the terms of this ordinance shall be subject to one or more of the following in the discretion of the Municipal Court Judge: imprisonment in the county jail or in any place provided by the municipality for the detention of prisoners, for any term not exceeding ninety (90) days or by a fine not exceeding one thousand dollars ($1,000.00) or by a period of community service not to exceed ninety (90) days.

Except as otherwise provided, each and every day in which a violation of this ordinance exists, shall constitute a separate violation. In addition, each violation of this ordinance shall be considered a separate offense upon each and every day in which a violation exists.

In addition to the foregoing, if the owner or its agents continuously, for a period of thirty (30) days or more, fails and refuses to comply with the requirements of this Section, the municipality may institute and maintain an action for injunctive relief to prohibit the continued sale of the lots within the subdivision until compliance with this Section, in addition to the suspension of the issuance of any further building permits for the subdivision or conducting of any inspections for approvals required under the subdivision approval.

Applicability of Provisions.

All the requirements set forth in this section with regard to the sale of lots shall apply with equal force and effect to the lands which have been previously subdivided pursuant to the law, and from and after the effective date of this Section, all owners of subdivided land shall comply forthwith. However, it is understood that the requirements of this section shall apply only to the first sale of a lot or lots of the subdivision to an individual home buyer. Whenever the word "He" or "Him" appears in the ordinance, it is intended to apply with equal force to "She" or "Her".

§ 132-58.2 Display of Certain Maps and Plans By Real Estate Brokers.

[Added 11-12-91 by Ord. No. 91-111]

All real estate brokers maintaining offices in the Township of East Brunswick shall post maps as set forth above.

§ 132-59 Enforcement.

The Mayor shall enforce this chapter. In case any building or structure is erected, constructed, altered, repaired, converted or maintained or any building, structure or land is used in violation of this chapter, the Mayor and his agent or interested party, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use; to restrain, correct or abate such violation; to prevent the occupancy of said building, structure or land; or to prevent any illegal action, conduct, business or use in or about such premises.

§ 132-59.1 Penalty For Conveying of Land Prior to Approval.

[Added 11-12-91 by Ord. No. 91-111]

If, before favorable referral and final approval has been obtained any person transfers or sells or agrees to sell, as owner or agent, any land which forms a part of a subdivision upon which the Planning Board is required to act, such person shall be subject to a fine not to exceed five hundred dollars ($500.) or to imprisonment for not more than ninety (90) days, and each parcel, plot or lot so disposed of shall be deemed a separate violation.

In addition to the foregoing, if the streets in the subdivision are not such that a structure on the land in the subdivision would meet requirements for a building permit under N.J.R.S. 40:55-1.30 et seq., the municipality may institute and maintain civil action:

For injunctive relief.