The power to regulate land use is set forth in R.S. 40:55D-1
et seq.
[Ord. 276]
This chapter shall be known and may be cited as The Land Use
Procedures Ordinance of the Borough of Hopewell.
[Ord. 276; Ord. 331; Ord. 369; Ord. 498; Ord.
577]
There is hereby established pursuant to C. 291. P.L. 1975, R.S.
40:55D-1 et seq., a planning board of nine members consisting of the
following four classes, and such alternates as permitted by law.
Class I. The mayor.
Class II. One of the officials of the borough other than a member
of the borough council to be appointed by the mayor; provided that
if there is an environmental commission, the member of the environmental
commission, who is also a member of the planning board as required
by R.S. 40:56A-1 shall be deemed to be the Class II planning board
member if there is a member of the board of education among the Class
IV members, or alternates.
Class III. A member of the borough council to be appointed by
it.
Class IV. Six other citizens of the borough to be appointed
by the mayor. The members of Class IV shall hold no other borough
office, position or employment, except that one member may be a member
of the board of education or historic preservation commission. A member
of the environmental commission who is also a member of the planning
board as required by R.S. 40:56A-1 shall be a Class IV planning board
member unless there be among the Class IV or alternate members of
the planning board both a member of the historic preservation commission
and a member of the board of education, in which case the member of
the environmental commission shall be deemed to be the Class II member
of the planning board.
Alternate Members. There shall be two alternate members of the
planning board to be appointed by the mayor. Alternate members shall
meet the qualifications of Class IV members of the planning board.
Alternate members shall be designated at the time of appointment by
the mayor as Alternate No. 1 and Alternate No. 2. The terms of the
alternate members shall be for two years, except that the terms of
the alternate members shall be such that the term of not more than
one alternate member expire in any one year; provided, however, that
in no instance shall the terms of the alternate members first appointed
exceed two years. A vacancy occurring otherwise than by expiration
of term shall be filled by the mayor for the unexpired term only.
The term of the member composing Class I shall correspond with
his official tenure. The terms of the members composing Class II and
Class III shall be for one year or terminate at the completion of
their respective terms of office, whichever occurs first, except for
a Class II member who is also a member of the environmental commission.
The term of a Class II or a Class IV member who is also a member of
the environmental commission shall be for three years or terminate
at the completion of his term of office as a member of the environmental
commission, whichever occurs first.
The term of a Class IV member who is also a member of the board
of education shall terminate whenever he is no longer a member of
such other body or at the completion of his Class IV term, whichever
occurs first.
The terms of all Class IV members first appointed pursuant to
this chapter shall be so determined that to the greatest practicable
extent, the expiration of such terms shall be evenly distributed over
the first four years after their appointment as determined by resolution
of the borough council, provided, however, that no term of any member
shall exceed four years and further provided that nothing herein shall
affect the term of any present member of the planning board, all of
whom shall continue in office until the completion of the term for
which they were appointed. Thereafter, all Class IV members shall
be appointed for terms of four years except as otherwise herein provided.
All terms shall run from January 1 of the year in which the appointment
was made. Any member other than a Class I member, after a public hearing,
if he requests one, may be removed by the borough council for cause.
Voting eligibility shall be determined as provided in subsection 10A-4.2 infra.
If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as provided in subsection 10A-2.2 for the unexpired term.
The planning board shall elect a chairman and vice chairman
from the members of Class IV and select a secretary who may be either
a member of the planning board or a borough employee designated by
it.
There is hereby created the office of planning board attorney.
The planning board may annually appoint, fix the compensation of or
agree upon the rate of compensation of the planning board attorney
who shall be an attorney other than the borough attorney.
The planning board may also employ or contract for the services
of experts and other staff and services as it may deem necessary.
The board shall not, however, exceed, exclusive of gifts or grants,
the court appropriated by the borough council for its use.
The board shall adopt such rules and regulations as may be necessary
to carry into effect the provisions and purposes of this chapter.
In the issuance of subpoenas, administration of oaths and taking of
testimony, the provisions of the County and Municipal Investigations
Law of 1953, R.S. 2A:67A-1, et seq., shall apply. It shall also have
the following powers and duties:
a.
To make and adopt and from time to time amend a master plan for the
physical development of the borough including any areas outside its
boundaries, which in the board's judgment bear essential relation
to the planning of the borough, in accordance with the provisions
of R.S. 40:55D-28.
b.
To administer the provisions of the land subdivision ordinance and
site plan review ordinance of the borough in accordance with the provisions
of such ordinances and the Municipal Land Use Law, Chapter 291, P.L.
1975, R.S. 40:55D-37.
c.
To approve conditional use applications in accordance with the provisions
of the zoning ordinance pursuant to R.S. 40:55D-67.
d.
To participate in the preparation and review of programs or plans
required by state or federal law or regulations.
e.
To assemble data on a continuing basis as a part of a continuous
planning process.
f.
To annually prepare a program of borough capital improvement projects
projected over a term of six years, and amendments thereto, and recommend
such to the borough council, pursuant to R.S. 40:55D-29.
g.
To consider and make report to the borough council within 35 days
after referral as to any proposed development regulations revision
or amendment thereto, and as to any official map or an amendment or
revision thereto, submitted to it pursuant to the provision of N.J.S.A.
40:55D-26(a), and also pass upon other matters specifically referred
to the planning board by the borough council, pursuant to the provisions
of N.J.S.A. 40:55D-26(b).
h.
To exercise, to the same extent and subject to the same restrictions all the powers of a board of adjustment pursuant to N.J.S.A. 40:55D-25(c). When the planning board considers applications for development which involve relief pursuant to subsection d of Section 57 of P.L. 1975, c. 291 (C. 40:55D-70), the Class I and Class III members shall not participate in the consideration of said application for development.
i.
To perform such other advisory duties as are assigned to it by ordinance
or resolution of the borough council for the aid and assistance of
the borough council or other agencies or officers.
j.
At the request of the developer, the planning board shall grant an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for development. The developer shall not be required to submit any fees for such an informal review; however, no professional review will be undertaken unless the developer agrees to deposit funds in an escrow account in an agreed amount and to pay professional review costs relating to the informal review. In accordance with subsection 10A-4.4c, the developer shall execute an escrow agreement to authorize a payment of said professional review costs. The developer shall not be bound by any concept plan for which review is requested and the planning board shall not be bound by such review.
k.
To inform all commercial, industrial and institutional establishments
making application to the planning board of the requirements of the
Mercer County Source Separation and Recycling Plan pursuant to subsection
3-19.1.e.
a.
Minor Subdivisions. Minor subdivision approvals shall be granted
or denied within 45 days of the date of submission of a complete application
to the administrative officer or within such further time as may be
consented to by the applicant. Approval of a minor subdivision shall
expire 190 days from the date 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", or
a deed clearly describing the approved minor subdivision, is filed
by the developer with the county recording officer, the borough engineer
and the borough tax assessor. Any such plat or deed shall be signed
by the chairman and secretary of the planning board before it will
be accepted for filing by the county recording officer.
The planning board may extend the 190-day period for filing
a minor subdivision plat or deed 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 the extension either before or after what
would otherwise be the expiration date.
The planning 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.
b.
Preliminary Approval Major Subdivisions. Upon submission of a complete
application for a subdivision of 10 or fewer lots, the planning board
shall grant or deny preliminary approval within 45 days of the date
of such submission or within such further time as may be consented
to by the developer. Upon submission of a complete application for
a subdivision of more than 10 lots, the planning board shall grant
or deny preliminary approval within 95 days of the date of such submission
or within such further time as may be consented to by the developer.
Otherwise, the planning board shall be deemed to have granted preliminary
approval for the subdivision.
c.
Final Approval. Application for final subdivision approval shall
be granted or denied within 45 days of submission of a complete application
or within such further time as may be consented to by the applicant.
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 ninety-five-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 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.
Applications for development within the jurisdiction of the
planning board pursuant to the provisions of C. 291, P.L. 1975, R.S.
40:55D-1 et seq., shall be filed with the secretary of the planning
board. The applicant shall file, at least 21 days before the date
of the monthly meeting of the board:
a.
Fifteen copies of a sketch plat.
b.
Fifteen copies of applications for minor subdivision approval.
c.
Fifteen copies of applications for major subdivision approval.
d.
Fifteen copies of an application for site plan review, conditional
use approval, or planned development.
At the time of filing the application, but in no event less
than 10 days prior to the date set for hearing the application, the
applicant shall also file all plot plans, maps or other papers required
by virtue of any provision of this chapter or any rule of the planning
board. The applicant shall obtain all necessary forms from the secretary
of the planning board. The secretary of the board shall inform the
applicant of the steps to be taken to initiate applications and of
the regular meeting dates of the board.
The mayor may appoint one or more persons as a citizens advisory
committee to assist or collaborate with the planning board in its
duties, but such person or persons shall have no power to vote or
take other action required of the board. Such person or persons shall
serve at the pleasure of the mayor.
Whenever the environmental commission has prepared and submitted
to the planning board an index of the natural resources of the borough,
the planning board shall make available to the environmental commission
an informational copy of every application for development to the
planning board. Failure of the planning board to make such informational
copy available to the environmental commission shall not invalidate
any hearing or proceeding.
a.
Pursuant to N.J.S.A. 40:55D-10.3, the Secretary of the Hopewell Borough
Planning Board shall review every application for development for
conformity with the requirements of the Hopewell Borough Planning
Board's General Checklist for Complete Development.
b.
The secretary's finding regarding the completeness of any application
for development shall be conveyed, by the secretary to the submitting
applicant within the time provided by N.J.S.A. 40:55D-10.3.
[Ord. 498; Ord. 507]
[1]
Editor's Note: Prior ordinances codified herein include portions
of Ordinance Nos. 276, 331 and 369.
The planning board shall exercise, to the same extent and subject
to the same restrictions, all the powers of a board of adjustment,
pursuant to N.J.S.A. 40:55D-25(c).
a.
The powers of the planning board, acting as a zoning board of adjustment,
shall be in accordance with R.S. 40:55D-70, et seq., and amendments
and supplements thereto, and with the provisions of this-chapter.
b.
It is further the intent of this chapter to confer upon the planning
board, acting as a zoning board of adjustment, as full and complete
powers as may lawfully be conferred upon such board, including, not
by way of limitation, the authority, in connection with any case,
action or proceeding before the board to interpret and construe the
provisions of this section or any term, clause, sentence or word hereof,
and the zoning map, in accordance with the general rules of construction,
applicable to legislative enactments.
c.
The board may, in appropriate cases and subject to appropriate conditions
and safeguards grant variances from the terms of this chapter in accordance
with the general or specific rules contained herein and with the general
rules hereby laid down that equity shall be done in cases where the
strict construction of the provisions of this chapter would work undue
hardship. The powers and duties of the board having been delegated
to and imposed upon it by statute, the board shall in all cases follow
the provisions applicable to it in Chapter 291, P.L. 1975, R.S. 40:55D-1
et seq., or subsequent statutes in such case made and provided, and
it shall from time to time furnish to any person requesting the same
a copy of its rules and information as to how appeals or applications
may properly be filed with the board for its decision thereon.
a.
Appeals. Appeals to the planning board, acting as a board of adjustment,
may be taken by any interested party affected by any decision of an
administrative office of the municipality based on or made in the
enforcement of the zoning ordinance or official map. Such appeal shall
be taken within 20 days by filing a notice of appeal with the officer
from whom the appeal is taken together with 15 copies of such notice
with the secretary of the planning board. The notice of appeal shall
specify the grounds for such appeal. The officer from whom the appeal
is taken shall immediately transmit to the board all the papers constituting
the record upon which the action appealed from was taken.
b.
Applications. Applications addressed to the original jurisdiction of the planning board, acting as a board of adjustment, without prior application to an administrative officer shall be filed with the secretary of the planning board. Eighteen copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps, or other papers required by virtue of any provision of this chapter or any rule of the board of adjustment. The applicant shall obtain all necessary forms from the secretary of the planning board. The secretary of the planning board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the board. All commercial, industrial and institutional establishments, including builders, contractors, and/or developers making application to the planning board, acting as a zoning board of adjustment, shall be notified of the requirements of the Mercer County Source Separation and Recycling Plan pursuant to subsection 3-19.1 e.
c.
Stay of Proceedings. An appeal stays all proceedings in furtherance
of the action in respect of which the decision appealed from was made,
unless the officer, from whom the appeal is taken certifies to the
planning board, after the notice of appeal shall have been filed with
the officer, that by reason of facts stated in the certificate a stay
would, in his opinion, cause imminent peril to life or property. In
such cases, proceedings shall not be stayed otherwise than by a restraining
order which may be granted by the planning board, acting as a board
of adjustment, or by the Superior Court of New Jersey on application
or notice to the officer from whom the appeal is taken and on due
cause shown.
In exercising the above-mentioned power, the planning board,
acting as a board of adjustment, may, in conformity with the provisions
of C. 291, P.L. 1975, R.S. 40:55D-1 et seq. or amendments thereto,
or subsequent statutes applying, reverse or affirm wholly or partly
or may modify the order, requirement, decision, or determination appealed
from, and make such other requirement, decision or determination as
ought to be made, and to that end have all the powers of the administrative
officer from whom the appeal was taken.
Any variance from the terms of this chapter hereafter granted
by the planning board, acting as a board of adjustment, permitting
the erection or alteration of any structure or structures, or permitting
a specified use of any premises shall expire by limitation unless
such construction or alteration shall have been actually commenced
on each and every structure permitted by such variance, or unless
such permitted use has actually been commenced, within one year from
the date of publication of the notice of the judgment or determination
of the planning board; except, however, that the running of the period
of limitation herein provided shall be tolled from the date of filing
an appeal from the decision of the planning board to the borough council,
or to a court of competent jurisdiction, until the termination in
any manner of such appeal or proceeding.
The planning board, acting as a board of adjustment, shall have
such powers as are granted by law pursuant to N.J.S.A. 40:55D-70.
The planning board, acting as a zoning board of adjustment, shall, in addition to the powers specified in subsection 10A-3.6, have power given by law to:
a.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a
building or structure in the bed of a mapped street or public drainageway,
flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32.
b.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a
building or structure not related to a street.
The planning board, acting as a board of adjustment, shall render
its decision not later than 120 days after the date (1) an appeal
is taken from the decision of an administrative officer or (2) submission
of a complete application for development to the board pursuant to
the provisions of R.S. 40:55D-72 (b).
Failure of the board to render a decision within such 120-day
period or within such further time as may be consented to by the applicant
shall constitute a decision favorable to the applicant.
Whenever review or approval of the application by the county
planning board is required by section 5 of P.L. 1968, c. 285 (C.40:27-6.3),
in the case of a subdivision, or section 8 of P.L. 1968, c. 285 (C.40:27-6.6),
in the case of a site plan, the planning board, acting as a board
of adjustment, shall condition any approval that it grants upon timely
receipt of a favorable report on the application by the county planning
board or approved by the county planning board by its failure to report
thereon within the required time.
An application under this section may be referred to any appropriate
person or agency, for its report, provided that such reference shall
not extend the period of time within which the planning board, acting
as a zoning board of adjustment, shall act.
[Ord. 276; Ord. 331; Ord. 369; Ord. 373; Ord.
498; Ord. 504]
No member of the planning board shall act on any matter in which
he has either directly or indirectly any personal or financial interest.
Whenever any such member shall disqualify himself from acting on a
particular matter, he shall not continue to sit with the board on
the hearing of such matter nor participate in any discussion or decision
relating thereto.
a.
Scheduled Meetings. Meetings of the planning board shall be scheduled
no less often than once a month and any meeting so scheduled shall
be held as scheduled unless cancelled for lack of applications for
development to process.
b.
Special Meetings. Special meetings may be provided for at the call
of the chairman or on the request of any two board members, which
shall be held on notice to its members and the public in accordance
with all applicable legal requirements.
c.
Quorum Required. No action shall be taken at any meeting without
a quorum being present.
d.
Majority Vote of Quorum. All actions shall be taken by a majority
vote of the members of the municipal agency present at the meeting
except as otherwise required by Sections 23, 25, 49, 50 and Subsections
8e, 17a, 17b, and 57d, of the New Jersey Municipal Land Use Law. Failure
of a motion to receive the number of votes required to approve an
application for development pursuant to the exceptional vote requirements
of Section 25 or Subsection 57d of said law shall be deemed an action
denying the application. Nothing herein shall be construed to contravene
any act providing for procedures for governing bodies.
A meeting may be adjourned for lack of a quorum by a majority
vote of those present. A member of a municipal agency who was absent
for one or more of the meetings at which a hearing was held shall
be eligible to vote on the matter upon which the hearing was conducted,
notwithstanding his absence from one or more of the meetings; provided
however, that such board member has available to him the transcript
or recording of all of the hearings from which he was absent, and
certifies in writing to the board that he has read such transcript
or listened to such recording.
e.
Open to Public. 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 Meeting Law,
Chapter 231. P.L. 1975. R.S. 10:4-1 et seq.
Minutes of every regular or special meeting shall be kept and
shall include the names of the persons appearing and addressing the
board and of the persons appearing by attorney, the action taken by
the board, the findings, if any, made by it and reasons therefor.
The minutes shall thereafter be made available for public inspection
during normal business hours at the office of the borough clerk. 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 for reproduction of the minutes for his use as provided for
in the rules of the board.
[Ord. 276, Art. III, S
4; Ord. 349, S 1 A; Ord. 369, S 1 K; Ord. 383, S 1 A; Ord. 406, S 1; Ord. 415, S 1; Ord. 436, S 1; Ord. 443, S 1; Ord. 452, S 1; Ord. 479, S 1; Ord. 498, S 1; Ord. 511, S 2; Ord. 550, S 1; Ord. 584, S 1; Ord. 621, S 1; Ord. 641, SS 1, 2; Ord. 674, S
1; Ord. 690, S 1; Ord. 691, S 3; Ord. No. 694, S 1; Ord. 740; Ord. No. 787; Ord. No.
807]
a.
Whenever an application for development to the planning board is
permitted or required by this chapter, it shall be in such form, and
submitted to the secretary of the planning board in such number of
copies, and accompanied by such maps, documents and materials as are
prescribed by rule of the board and by this chapter and shall include
all items and information specified on the checklist entitled "General
Checklist for Complete Development Applications, Borough of Hopewell,
Mercer County, N.J." dated November 14, 1988, revised July 1989, adopted
by reference by the borough governing body, pursuant to N.J.S.A. 40:55D-10.3,
for purposes of determining whether the application is complete.
b.
Each such application for development shall be accompanied by payment
of a fee to the municipality as follows:
|
Application
|
Application Fee
|
Plus
|
Escrow Account
|
|---|---|---|---|
|
Subdivisions
| |||
|
Minor
|
$400
|
$3,000 (per lot)
| |
|
Major (Preliminary Approval)
|
$600
|
$3,000 (per lot)
| |
|
Major (Final Approval)
|
$400
|
$3,000 (per lot)
| |
|
Resubmission of Incomplete Application
|
$300
|
None required
| |
|
Concept Plan
|
$300 (To be credited toward escrow charges for development application)
|
$800 (To be credited toward escrow charges for development application)
| |
|
Site Plans
| |||
|
Preliminary Site Plan
|
$600
|
$0.20 per square foot being disturbed, provided a minimum of
$2,000 shall be deposited
| |
|
Final Site Plan
|
$600
|
$0.10 per square foot being disturbed, provided a minimum of
$2,000 shall be deposited
| |
|
Sketch Site Plan
|
$300 (To be credited toward escrow charges for development application)
|
$800 (To be credited toward escrow charges for development application)
| |
|
Minor Site Plan
|
$400
|
$0.20 per square foot being disturbed, provided a minimum of
$500 shall be deposited
| |
|
Waived Site Plan
|
$250
|
$3,000
| |
|
Resubmission of Incomplete Application
|
$150
|
None required
| |
|
Variances
| |||
|
Appeal (40:55D-70a)
| |||
|
Residential
|
$200
|
$2,000
| |
|
Nonresidential
|
$400
|
$3,000
| |
|
Interpretation (40:55D-70b)
| |||
|
Residential
|
$200
|
$2,000
| |
|
Nonresidential
|
$300
|
$3,000
| |
|
Bulk Variance (40:55D-70c)
| |||
|
Residential
|
$250
|
$3,000
| |
|
Nonresidential
|
$400
|
$3,500
| |
|
Use Variance (40:55D-70d)
|
$500
|
$5,000
| |
|
Conditional Use Approval
| |||
|
Residential
|
$300
|
$3,000
| |
|
Nonresidential
|
$400
|
$5,000
| |
|
Permits
| |||
|
Zoning Permits
|
$50
|
None required
| |
|
Review of Drainage Plans and "As-Built" Plans
| |||
|
Review of Drainage Plans
| |||
|
Application plus fee
[Ord. No. 787] |
$250
|
$1,500
| |
|
Each Resubmission of Drainage Plans
|
$150
|
None required
| |
|
Review of "As-Built" Plans
| |||
|
Application plus fee
[Ord. No. 787] |
$200
|
$1,000
| |
|
Each resubmission of "As-Built" Plan
|
$150
|
None required
| |
c.
The application fee as set forth hereinabove is a flat fee to cover
direct administrative expenses, other than professional services and
is nonrefundable. The escrow account as set forth hereinabove is established
to cover the cost of professional services, including but not limited
to engineering, professional planning, legal and other expenses connected
with the review of the submitted materials, the related hearing process
and follow up thereto. The applicant shall execute an escrow agreement
to authorize payment of said expenses. Sums not utilized in the review
process shall be returned to the applicant within a reasonable period
of time after the adoption of a resolution of memorialization by either
the planning board or zoning board disposing of the pending land development
application. If additional funds are deemed necessary, the applicant
shall be notified of the required additional amount and shall add
such sum to the account as required by the planning board or zoning
board. Where applicable, no development certificate of occupancy shall
be issued until all escrow charges have been paid. All escrow charges
which are due and owing shall become a lien upon the premises with
respect to which said charges are required and shall remain so until
paid. Said overdue charges shall accrue the same interest from time
to time as taxes upon real estate in the borough. The borough shall
have the same remedies for the collection thereof with interest, costs
and penalties as it has by law for the collection of taxes upon real
estate.
d.
Where one application for development includes several approval requests,
the sum of the individual required fees shall be paid.
e.
Each applicant for subdivision or site plan approval shall agree
in writing to pay all reasonable costs for professional review of
the application and for inspection of the improvements. All such costs
for review and inspection must be paid before any approved plat, plan
or deed is signed or any construction permit is issued and all remaining
costs must be paid in full before any occupancy of the premises is
permitted or certificate of occupancy issued.
f.
Each application to the planning board for:
1.
Preliminary subdivision approval involving less than 20 lots;
2.
Preliminary site plan approval involving less than 20 lots or 20
dwelling units;
3.
Preliminary site plan approval of nonresidential building of less
than 5,000 square feet;
4.
Conditional use authorization; or
5.
Use variance; shall also be accompanied by payment to the municipality
of $150 to defray the cost of providing a shorthand reporter at the
hearing on said development application.
If more than one application involving the same property is
to be heard at the same hearing before the planning board, the applicant
shall pay a fee of $75.
If the application involves 20 or more lots or 20 or more dwelling
units or a nonresidential building of 5,000 square feet or more, the
application shall be accompanied by a fee of $100.
If the planning board hearings extend more than one meeting,
an additional fee in the same amount as above provided shall be paid
prior to each continued hearing.
The planning board may waive in whole or in part or modify the
above fees for good cause shown.
g.
Court Reporter.
1.
If an applicant desires a court reporter, the cost for taking testimony
and transcribing it and providing a copy of the transcript to the
borough shall be at the expense of the applicant who shall arrange
for the reporter's attendance.
2.
Each application to the planning board for preliminary major subdivision
approval, preliminary site plan approval, conditional use authorization
or use variance shall, in addition to any other fees or costs, be
accompanied by payment to the borough of $150 to defray the cost of
providing a shorthand reporter at the hearing on such application.
In the event a hearing on any application described in this
section continues beyond a single date, payment of $150 must be made
to the borough prior to each and every subsequent hearing date on
any such application.
The planning board, as appropriate, may waive in whole or in
part the fees provided for in this section for good cause shown.
h.
Development Fees.
1.
Purpose.
(a)
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.
(b)
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 is 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 court of competent jurisdiction and have a COAH-approved spending
plan may retain fees collected from non-residential development.
(c)
This paragraph establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance 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, codified
at N.J.A.C. 5:97-8.
3.
Definitions.
(a)
AFFORDABLE HOUSING DEVELOPMENT
COAH OR THE COUNCIL
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
The following terms, as used in this paragraph, shall have the
following meanings:
Shall mean 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% affordable
development.
Shall mean the New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the State.
Shall mean 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.
Shall mean money paid by a developer for the improvement
of property as permitted in N.J.A.C. 5:97-8.3.
Shall mean 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).
Shall mean 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.
4.
Residential Development Fees.
(a)
Imposed fees.
(1)
Within every zoning district, residential developers, except
for developers of the types of development specifically exempted below,
shall pay a fee of 1 1/2% of the equalized assessed value for
residential development provided no increased density is permitted.
(2)
When an increase in residential density pursuant to N.J.S.A.
40:55D-70d(5) (known as a "d" variance) has been permitted, developers
may be required to pay a development fee of 6% of the equalized assessed
value for each additional unit that may be realized. However, if the
zoning on a site has changed during the two-year period preceding
the filing of such a variance application, the base 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.
(b)
Eligible exactions, ineligible exactions and exemptions for
residential development.
(1)
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality, and developments where the developer has made a
payment in lieu of on-site construction of affordable units shall
be exempt from development fees.
(2)
Developments that have received preliminary or final site plan
approval prior to the adoption of a municipal development fee ordinance
shall be exempt from development fees, unless the developer seeks
a substantial change in the approval. Where a site plan approval does
not apply, a zoning and/or building permit shall be synonymous with
preliminary or final site plan approval for this purpose. The fee
percentage shall be vested on the date that the building permit is
issued.
(3)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, or is expanded, if the expansion is not otherwise exempt
from the development fee requirement. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(4)
Developers of additions to existing dwelling units that do not
result in the creation of an additional dwelling unit or units shall
be exempt from this development fee.
5.
Nonresidential Development Fees.
(a)
Imposed fees.
(1)
Within all zoning districts, nonresidential developers, except
for developers of the types of development specifically exempted,
shall pay a fee equal to 2 1/2% of the equalized assessed value
of the land and improvements, for all new nonresidential construction
on an unimproved lot or lots.
(2)
Nonresidential developers, except for developers of the types
of development specifically exempted, shall also pay a fee equal to
2 1/2% of the increase in equalized assessed value resulting
from any additions to existing structures to be used for nonresidential
purposes.
(3)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2 1/2%
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 nonresidential
development fee shall be zero.
(b)
Eligible exactions, ineligible exactions and exemptions for
non-residential development.
(1)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the 2 1/2% development fee,
unless otherwise exempted below.
(2)
The 2 1/2% fee shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within existing
footprint, reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to P.L. 2008, c.46, as specified in the Form N-RDF
"State of New Jersey Non-Residential Development Certification/Exemption"
Form. Any exemption claimed by a developer shall be substantiated
by that developer.
(4)
A developer of a nonresidential development exempted from the
nonresidential 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 nonresidential development fee,
in that event, within three years after that event or after the issuance
of the final certificate of occupancy of the nonresidential development,
whichever is later.
(5)
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this paragraph within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Borough of Hopewell as a lien against the
real property of the owner.
6.
Collection Procedures.
(a)
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 responsible for
the issuance of a building permit.
(b)
For nonresidential developments only, the developer shall also
be provided with a copy of Form N-RDF "State of New Jersey Non-Residential
Development Certification/Exemption" to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The construction official
shall verify the information submitted by the nonresidential 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.
(c)
The construction official responsible for the issuance of a
building permit shall notify the local tax assessor of the issuance
of the first building permit for a development which is subject to
a development fee.
(d)
Within 90 days of receipt of that notice, the municipal tax
assessor, based on the plans filed, shall provide an estimate of the
equalized assessed value of the development.
(e)
The construction official responsible for the issuance of a
final certificate of occupancy notifies the local assessor of any
and all requests for the scheduling of a final inspection on property
which is subject to a development fee.
(f)
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.
(g)
Should the Borough of Hopewell 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).
(h)
50% of the development fee shall be collected at the time of
issuance of the building permit. The remaining portion shall be collected
at the issuance of the certificate of occupancy. The developer shall
be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of certificate
of occupancy.
(i)
Appeal of Development Fees.
(1)
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 the Borough of Hopewell.
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.
(2)
A developer may challenge nonresidential 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 the Borough of
Hopewell. 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.
7.
Affordable Housing Trust Fund.
(a)
There is hereby created a separate, interest-bearing housing
trust fund to be maintained by the chief financial officer for the
purpose of depositing development fees collected from residential
and nonresidential developers and proceeds from the sale of units
with extinguished controls.
(b)
The following additional funds shall be deposited in the affordable
housing trust fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development accessible;
(3)
Rental income from municipally operated units;
(4)
Repayments from affordable housing program loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with the Borough of
Hopewell's affordable housing program.
(c)
Within seven days from the opening of the trust fund account,
the Borough of Hopewell shall provide COAH with written authorization,
in the form of a three-party escrow agreement between the municipality
and COAH to permit COAH to direct the disbursement of the funds as
provided for in N.J.A.C. 5:97-8.13(b).
(d)
All interest accrued in the housing trust fund shall only be
used on eligible affordable housing activities approved by COAH.
8.
Use of Funds.
(a)
The expenditure of all funds shall conform to a spending plan
approved by COAH. Funds deposited in the housing trust fund may be
used for any activity approved by COAH to address the Borough of Hopewell'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 nonresidential
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 as permitted pursuant to N.J.A.C. 5:97-8.7 through
8.9 and specified in the approved spending plan.
(b)
Funds shall not be expended to reimburse the Borough of Hopewell
for past housing activities.
(c)
At least 30% 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% or less of median income
by region.
(1)
Affordability assistance programs may include down 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.
(2)
Affordability assistance to households earning 30% 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% or less of median income.
(3)
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.
(d)
The Borough of Hopewell 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.
(e)
No more than 20% of all revenues collected from development
fees, 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% of the 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 COAH's monitoring requirements. Legal or other fees
related to litigation opposing affordable housing sites or objecting
to the Council's regulations and/or action are not eligible uses of
the affordable housing trust fund.
9.
Monitoring.
(a)
The Borough of Hopewell shall complete and return to COAH all
monitoring forms included in monitoring requirements related to the
collection of development fees from residential and nonresidential
developers, payments in lieu of constructing affordable units on site,
funds from the sale of units with extinguished controls, barrier free
escrow funds, rental income, repayments from affordable housing program
loans, and any other funds collected in connection with the Borough
of Hopewell's housing program, as well as to the expenditure of revenues
and implementation of the plan certified by COAH. All monitoring reports
shall be completed on forms designed by COAH.
10.
Ongoing Collection of Fees.
(a)
The ability for the Borough of Hopewell to impose, collect and
expend development fees shall expire with its substantive certification
unless the Borough of Hopewell has filed an adopted Housing Element
and Fair Share Plan with COAH, has petitioned for substantive certification,
and has received COAH's approval of its development fee ordinance.
If the Borough of Hopewell fails to renew its ability to impose and
collect development fees prior to the expiration of: substantive certification,
it may be subject to forfeiture of any or all funds remaining within
its municipal 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). The Borough of Hopewell
shall not impose a residential development fee on a development that
receives preliminary or final site plan approval after the expiration
of its substantive certification or judgment of compliance, nor shall
the Borough of Hopewell retroactively impose a development fee on
such a development. The Borough of Hopewell shall not expend development
fees after the expiration of its substantive certification or judgment
of compliance.
a.
Rules. The planning board shall make rules governing the conduct
of hearings before such body which rules shall not be inconsistent
with the provisions of R.S. 40:55D-1, et seq., or of this chapter.
b.
Oaths; Subpoenas. 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. The provisions of the "County and Municipal Investigations
Law," C. 38, P.L. 1953, R.S. 2A:67A-1, et seq., shall apply.
c.
Testimony. The testimony of all witnesses relating to an application
for development shall be taken under oath or affirmation by the presiding
officer and the right of cross examination shall be permitted to all
interested parties through their attorney, 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.
d.
Evidence. Technical rules of evidence shall not be applicable to
the hearing, but the board may exclude irrelevant, immaterial or unduly
repetitious evidence.
e.
Records. The planning board shall provide for the verbatim recording
of the proceedings by either stenographer, mechanical or electronic
means. The board shall furnish a transcript or duplicate recording
in lieu thereof on request to any interested party at his expense.
The transcript cost will not exceed the maximum permitted in R.S.
2A:11-15. A deposit representing an estimate of the cost of said transcript
shall be paid prior to its preparation.
Whenever a hearing is required on an application for development
pursuant to R.S. 40:55D-1, et seq., or pursuant to the determination
of the borough agency in question, the applicant shall give notice
thereof as follows:
a.
Public Notice. Public notice shall be given by publication in the
official newspaper of the borough at least 10 days prior to the date
of the hearing.
b.
Notice to Property Owners. Notice shall be given to the owners of
all real property as shown on the current tax duplicate, located in
the state and within 200 feet in all directions of the 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: (1) serving a copy thereof of the property owner as shown
on the said current tax duplicate, or his agent in charge of the property,
or (2) mailing a copy thereof by certified mail to the property owner
at his address as shown on the said current tax duplicate. A return
receipt is not required.
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 homeowner's 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.
c.
Adjoining Municipality. Notice of all hearings on applications for
development involving property located within 200 feet of an adjoining
municipality shall be given by personal service or certified mail
to the clerk of such municipality. Such notice shall be addition to
the notice required to be given pursuant to paragraph b of this subsection
to the owners of lands in such adjoining municipality which are located
within 200 feet of the subject premises.
d.
County Planning Board. 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 situate within 200 feet
of a borough boundary.
e.
Commissioner of Transportation. 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.
f.
Department of Community Affairs. Notice shall be given by personal
service or certified mail to the State Planning Commission of a hearing
on an application for development of property which exceeds 150 acres
or 500 dwelling units. Such notice shall include a copy of any maps
or documents required to be on file with the borough clerk pursuant
to Section 6b of C. 291, P.L. 1975, R.S. 40:55D-1 et seq.
g.
Proof of Service. All notices hereinabove specified in this subsection
shall be given at least 10 days prior to the date fixed for hearing
and the applicant shall file an affidavit of proof of service with
the board holding the hearing on the application for development.
h.
Completion of Notice. Any notice made by certified mail as hereinabove
required shall be deemed to be complete upon mailing in accordance
with the provisions of R.S. 40:55D-14.
i.
Form of Notice. All notices required to be given pursuant to the
terms of this chapter shall state the date, time and place of the
hearing, the nature of the matters to be considered and identification
of the property proposed for development by street address, if any,
or by reference to lot and block numbers as shown on the current tax
duplicate in the borough tax assessor's office and the locations and
terms at which any maps and documents for which approval is sought
are available as required by law.
j.
Certain Notices Not Required. Notice pursuant to paragraphs 10A-4.6c,
10A-4.6d, 10A-4.6e, and 10A-4.6f shall not be deemed to be required
unless public notice pursuant to paragraphs 10A-4.6a and 10A-4.6b
is required.
k.
Notice to Public Utilities, Local Utilities and Cable Television
Companies.
1.
Notice of hearings on applications for approval of a major subdivision
or a site plan not defined as a minor site plan requiring public notice
shall be given, in the case of a public utility, cable television
company or local utility which possesses a right-of-way or easement
within the borough and which is registered with the borough in accordance
with subparagraph 2 of this paragraph k, by (1) serving a copy of
the notice on the person whose name appears on the registration form
on behalf of the public utility, cable television company or local
utility or (2) mailing a copy thereof by certified mail to the person
whose name appears on the registration form at the address shown on
that form.
2.
Every public utility, cable television company or local utility which possesses a right-of-way or easement within the borough may register with the borough to receive notice of hearings in accordance with paragraph (1) of this paragraph k. The tax assessor of the borough shall adopt a registration form and shall maintain a record of all public utilities, cable television companies and local utilities which have registered with the borough. The registration form shall include the name of the public utility, cable television company or local utility and the name, address and position of the person to whom notice shall be forwarded. The information contained therein shall be made available to any applicant pursuant to subsection 10A-4.7 of this chapter. A registration fee of $10 shall be collected from every public utility, cable television company or local utility which registers to receive notice pursuant to this chapter.
Pursuant to the provisions of R.S. 40:55D-12c, the tax assessor of the borough shall within seven days after receipt of a request therefor and upon receipt of payment of a fee not to exceed $0.25 per name, or $10, whichever is greater, make and certify a list from the current tax duplicate of names and addresses of owners to whom the applicant is required to give notice pursuant to subsection 10A-4.6b of this chapter. In addition, the tax assessor shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to subsection 10A-4.6k.
a.
Resolution of the Board. The planning board 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 planning
board shall provide the findings and conclusions through:
1.
A resolution adopted at a meeting held within the time period provided
in the New Jersey Municipal Land Use Law for action by the planning
board on the application for development; or
2.
A memorializing resolution adopted at a meeting held not later than
45 days after the date of the meeting at which the planning board
voted to grant or deny approval. Only the members of the planning
board who voted for the action taken may vote on the memorializing
resolution, and the vote of a majority of such members present at
the meeting at which the resolution is presented for adoption shall
be sufficient to adopt the resolution. An action pursuant to Section
5 of the New Jersey Municipal Land Use Law (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 planning board; however, the date of
the adoption of the resolution shall constitute the date of the decision
for purposes of the mailings, filings and publications required by
Subsections h and I of Section 6 (40:55D-10). If the planning board
fails to adopt a resolution or memorializing resolution as hereinabove
specified, any interested party may apply to the Superior Court in
a summary manner for an order compelling the planning board to reduce
its findings and conclusions to writing within a stated time and cost
of the application, including attorney's fees, shall be assessed against
the municipality.
b.
Copy of the Decision; Mailings; Public Record. A copy of the decision
shall be mailed by the planning board within 10 days of the date of
the decision to the applicant, or if represented, then to his attorney,
without separate charge. A copy of the decision shall also be mailed
to all persons who have requested it and who have paid the fee prescribed
by the board for such service. A copy of the decision shall also be
filed in the office of the borough clerk, who shall make a copy of
such filed decision available to any interested party upon payment
of a fee calculated in the same manner as those established for copies
of other public documents in the borough.
A brief notice of every final decision shall be published in
the official newspaper of the borough. Such publication shall be arranged
by the secretary of the planning board. The cost of publication shall
be paid by the applicant. The notice shall be sent to the official
newspaper for publication within 10 days of said decision.
Pursuant to the provisions of R.S. 40:55D-39 and R.S. 40:55D-65,
every application for development submitted to the planning board
shall be accompanied by proof that no taxes or assessments for local
improvements are due or delinquent on the property which is the subject
of such application; or, if it is shown that taxes or assessments
are delinquent on such property, any approvals or other relief granted
by the planning board shall be conditioned upon either the prompt
payment of such taxes or assessments, or the making of adequate provision
for the payment thereof in such manner that the borough will be adequately
protected.
[Ord. 369; Ord. 498]
Any interested party may appeal to the governing body any final
decision of the planning board, acting as a board of adjustment, approving
an application for development pursuant to N.J.S.A. 40:55D-70(d).
Such appeal shall be made within 10 days of the date of publication
of such final decision pursuant to N.J.S.A. 40:55D-10(i). The appeal
to the governing body shall be made by serving the municipal clerk
in person or by certified mail, with a notice of appeal specifying
the grounds thereof and the name and address of the appellant and
the name and address of his attorney, if represented. Such appeal
shall be decided by the governing body only upon the record established
before the planning board.
Notice of the meeting to review the record below shall be given
by the governing body by personal service or certified mail to the
appellant, to those entitled to notice of a decision pursuant to N.J.S.A.
40:55D-10(h), and to the planning board at least 10 days prior to
the date of the meeting. The parties may submit oral and written argument
on the record at such meeting, and the governing body shall provide
for verbatim recording and transcripts of such meeting pursuant to
N.J.S.A. 40:55D-10(f).
The appellant shall (1) within five days of service of the notice
of the appeal, arrange for a transcript pursuant to N.J.S.A. 40:55D-10(f)
for use by the governing body and pay a deposit of $50 or the estimated
cost of such transcription, whichever is less, or (2) within 35 days
of service of the notice of appeal, submit a transcript as otherwise
arranged to the municipal clerk; otherwise, the appeal may be dismissed
for failure to prosecute.
The governing body shall conclude a review of the record below
not later than 95 days from the date of publication of notice of the
decision below pursuant to N.J.S.A. 40:55D-10(i) unless the applicant
consents in writing to an extension of such period. Failure of the
governing body to hold a hearing and conclude a review of the record
below and to render a decision within such specified period shall
constitute a decision affirming the action of the board.
The governing body may reverse, remand, or affirm with or without
the imposition of conditions the final decision of the planning board,
acting as a board of adjustment, approving a variance pursuant to
N.J.S.A. 40:55D-70(d). The review shall be made on the record made
before the board of adjustment.
The affirmative vote of a majority of the full authorized membership
of the governing body shall be necessary to reverse, remand, or affirm
with or without conditions, any final action of the planning board,
acting as a board of adjustment.
An appeal to the governing body shall stay all proceedings in
furtherance of the action in respect to which the decision appealed
from was made unless the planning board certifies to the governing
body, after the notice of appeal shall have been filed with the board,
that by reason of facts stated in the certificate a stay would, in
its opinion, cause imminent peril to life or property. In such case,
proceedings shall not be stayed other than by an order of the Superior
Court on application upon notice to the planning board and on good
cause shown.
The governing body shall mail a copy of the decision to the
appellant or if represented then to his attorney, without separate
charge, and for a reasonable charge to any interested party who has
requested it, not later than 10 days after the date of the decision.
A brief notice of the decision shall be published in the official
newspaper of the municipality. Such publication shall be arranged
by the applicant unless a particular municipal officer is so designated
by ordinance; provided that nothing contained herein shall be construed
as preventing the applicant from arranging such publication if he
so desires. The governing body may make a reasonable charge for its
publication. The period of time in which an appeal to a court of competent
jurisdiction may be made shall run from the first publication, whether
arranged by the municipality or the applicant.
Nothing in this chapter shall be construed to restrict the right
of any party to obtain a review by any court of competent jurisdiction
according to law.
[Ord. 276]
[1]
Editor's Note: Ordinance No. 369 which amended various sections
of this chapter provides that any application for development submitted
before July 1, 1984 to a municipal agency pursuant to lawful authority
may be continued at the option of the applicant, and the municipal
agency shall have every power it possessed before July 1, 1984 in
regard to any such application.
Whenever a term is used in this chapter which is defined in
Chapter 291, P.L. 1975, R.S. 40:55D-1 et seq., such term is intended
to have the meaning set forth in the definition of such term found
in the statute, unless a contrary intention is clearly expressed from
the context of this chapter.
All sections of the land subdivision ordinance and zoning ordinances,
or any other ordinance of the borough which contains provisions contrary
to the provisions of this chapter shall be and are hereby, to the
extent of such inconsistency, repealed.
Pursuant to the provisions of Chapter 291, P.L. 1975, R.S. 40:55D-1 et seq., Section 81, the substantive provisions and any consistent procedural provisions of the existing Land Subdivision Chapter, Chapter 11 and the Zoning Chapter, Chapter 12, of this revision adopted June 2, 1975, as amended, and the development regulations set forth herein are hereby adopted by reference and shall continue in full force and effect and shall be read in para materia with this chapter.
All applications for development filed prior to the effective date of this chapter may be continued, but any appeals arising out of decisions made on any such application shall be governed by the provisions of section 10A-5 of this chapter.
Immediately upon adoption of this chapter, the borough clerk
shall file a copy of this chapter with the county planning board as
required by law. The clerk shall also file with the county planning
board copies of all other ordinances of the borough relating to land
use, such as the subdivision, zoning and site plan review ordinances.
This chapter shall take effect on February 1, 1977, and upon
the filing of a copy thereof with the Mercer County Planning Board.
