Borough of Hopatcong, NJ
Sussex County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Mayor and Council of the Borough of Hopatcong 12-21-2011 by Ord. No. 31-2011.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Affordable housing — See Ch. 57.
Site plan review — See Ch. 191.
Lot grading plan — See Ch. 197.
Subdivision of land — See Ch. 209.
Zoning — See Ch. 242.
[1]
Editor's Note: This ordinance also repealed former Ch. 28, Land Use Procedures, adopted 9-3-2008 by Ord. No. 18-2008, as amended.
The Planning Board, as heretofore established, shall be and is hereby continued under the name "Borough of Hopatcong Land Use Board," with all powers and duties as described herein. The Hopatcong Borough Zoning Board of Adjustment is hereby discontinued and its powers and duties are transferred to the Borough of Hopatcong Land Use Board as set forth herein.
A. 
There shall be a nine-member Municipal Land Use Board, the membership of which shall consist of the following four classes:
(1) 
Class I: the Mayor or the Mayor's designee in the absence of the Mayor;
(2) 
Class II: one of the officials of the Borough other than a member of the governing body, to be appointed by the Mayor, provided that if there be an Environmental Commission, the member of the Environmental Commission who is also a member of the Municipal Land Use Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Municipal Land Use Board member for purposes of this section in the event that there be among the Class IV or alternate members of the Municipal Land Use Board a member of the Board of Education.
(3) 
Class III: A member of the governing body to be appointed by it.
(4) 
Class IV: other citizens of the Borough, to be appointed by the Borough Council.
(a) 
The members of Class IV shall hold no other municipal office, position or employment except that not more than one member of the Board of Education may be a Class IV member of the Municipal Land Use Board. If and while there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Municipal Land Use Board as required by N.J.S.A. 40:56A-1 shall be a Class IV Municipal Land Use Board member. For the purpose of this section, membership on a Borough board or commission whose function is advisory in nature, and the establishment of which is discretionary and not required by statute, shall not be considered the holding of municipal office.
B. 
The term of the member composing Class I shall correspond to such member's official tenure. If such member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's 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 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. To the greatest practicable extent, the expiration of the terms of all Class IV members shall be distributed so that concurrent term expirations are avoided, provided that the initial Class IV term for no member shall exceed four years. After the establishment of the Board's membership as aforesaid, the Class IV term of each member shall be four years. If a vacancy in any class shall occur otherwise than by expiration of the Municipal Land Use Board term, it shall be filled by appointment, as above provided, for the unexpired term.
C. 
No member of the Municipal Land Use Board shall be permitted to act on any matter in which he or she has, either directly or indirectly, any personal or financial interest. Any member other than a Class I member, after a public hearing if requested, may be removed by the governing body for cause.
D. 
The Mayor may appoint a designee to serve at his pleasure, provided a letter of appointment is filed with the Borough Clerk. Any person appointed shall serve until a letter of appointment of another person is filed with the Borough Clerk.
E. 
All members of the Board, except the Class II member, shall be municipal residents.
A. 
There shall be four alternate members of the Municipal Land Use Board, all of whom shall be municipal residents. Alternate members shall be appointed by the Borough Council for Class IV members and shall meet the qualifications of Class IV members. Alternate members shall be designated at the time of appointment as "Alternate No. 1" through "Alternate No. 4." 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 two alternate members shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. A vacancy occurring otherwise than by expiration of term shall be filled by the Borough Council for the unexpired term only.
B. 
No alternate member shall be permitted to act on any matter in which he or she has, either directly or indirectly, any personal or financial interest. An alternate member may, after public hearing if requested, be removed by the governing body for cause.
C. 
Alternate members may participate in all matters 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.
[Amended 5-15-2019 by Ord. No. 6-2019]
The Municipal Land Use Board shall elect a Chairman and Vice Chairman from the members of Class IV, and select a Secretary who may or may not be a member of the Municipal Land Use Board or a municipal employee, and create and fill such other offices as established by ordinance. An alternate member shall not serve as Chairman or Vice Chairman of the Municipal Land Use Board. The Board shall have legal counsel pursuant to contract at a fixed rate of compensation, who shall be an attorney at law of the State of New Jersey, other than the Municipal Attorney, and who shall be qualified to serve the Municipal Land Use Board. The Board may also appoint a licensed professional engineer in the State of New Jersey, who does not need to be the Borough Engineer. The Board may also appoint or engage a licensed professional planner in the State of New Jersey. The Board may also employ, contract for and fix the compensation of other staff and services as it may deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its use. The governing body shall make provision in its budget and appropriate funds for the expenses of the Municipal Land Use Board.
A. 
The Municipal Land Use Board shall follow the provisions of this Code and the Municipal Land Use Law, and shall accordingly exercise its powers in regard to:
(1) 
The Master Plan;
(2) 
Subdivision control and site plan review;
(3) 
The Official Map, if there be one;
(4) 
The Zoning Ordinance;[1]
[1]
Editor's Note: See Ch. 242, Zoning.
(5) 
Conditional uses;
(6) 
Capital improvements program;
(7) 
Variances and certain building permits in conjunction with subdivision, site plan and conditional use approval.
B. 
The Municipal Land Use Board shall also have the following powers formerly exercised by the Zoning Board of Adjustment:
(1) 
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on, or made in the enforcement of, the Zoning Ordinance.
(2) 
Hear and decide requests for interpretation of the Zoning Map or Ordinance, or for decisions upon other special questions upon which the Board is authorized to pass by any Zoning or Official Map ordinance in accordance with this chapter and the Municipal Land Use Law.
(3) 
Variances.
(a) 
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any zoning regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship;
(b) 
Where, in an application or appeal relating to a specific piece of property, the purposes of zoning would be advanced by a deviation from the Zoning Ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from such regulations; provided, however, that no variance from those departures enumerated in Subsection D of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to review a request for a variance pursuant to N.J.S.A. 40:55D-60a.
(c) 
In particular cases and for special reasons, grant of a variance to allow departure from zoning regulations to permit a use or principal structure in a district restricted against such use or principal structure; an expansion of a nonconforming use; deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use; an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4; an increase in the permitted density as defined in N.J.S.A. 40:55D-4, except as applied to the required lot area for a lot or lots for detached one- or two-dwelling-unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision; or a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members.
(d) 
If an application for development requests one or more variances, but not a variance for a purpose enumerated in Subsection D of this section, the decision on the requested variance or variances shall be rendered under Subsection C of this section.
(e) 
No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and Zoning Ordinance.
(4) 
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 stormwater drainage system, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32;
(5) 
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street;
(6) 
Hear appeals taken by any interested party affected by any decision of an administrative officer of the Borough based on or made in the enforcement of the Zoning Ordinance or Official Map; and
(7) 
Grant subdivision or site plan approval or conditional use approval whenever the proposed development requires approval a variance pursuant to Subsection d of N.J.S.A. 40:55D-70.
(8) 
The Municipal Land Use Board shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report of its findings on Zoning Ordinance provisions which were the subject of variance requests and its recommendations for Zoning Ordinance amendment or revision, if any. The Board shall send copies of the report and resolution to the governing body.
C. 
The Municipal Land Use Board may:
(1) 
Participate in the review of programs or plans required by state or federal law or regulation;
(2) 
Assemble data on a continuing basis as part of a continuous planning process; and
(3) 
Perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the governing body or other agencies or officers.
D. 
Whenever the proposed development requires approval of a subdivision, site plan or conditional use, but not a variance pursuant to Subsection d of N.J.S.A. 40:55D-70, the Municipal Land Use Board shall have the power to grant to the same extent and subject to the same restrictions as the Board of Adjustment:
(1) 
Variances pursuant to N.J.S.A. 40:55D-70c;
(2) 
Direction pursuant to N.J.S.A. 40:55D-34 for issuance of a permit for a building or a structure in the bed of a mapped street or a public stormwater drainage system, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32; and
(3) 
Direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit for a building or structure not related to a street.
E. 
Whenever relief is requested pursuant to this section, notice of the hearing on the application for development shall include reference to the request for a variance, or direction for issuance of a permit, as the case may be. The developer may elect to submit a separate application requesting approval of the variance or direction of the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance or direction of the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Municipal Land Use Board. No such subsequent approval shall be granted unless the approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and Zoning Ordinance.
F. 
The Municipal Land Use Board shall have referral power whenever a development regulation, revision or amendment thereto is proposed. Prior to the adoption of any such regulation, revision or amendment, the Municipal Land Use Board shall receive a true copy of the same as introduced by the governing body, and shall make and transmit to the governing body, within 35 days after referral, a report including identification of any provisions in the proposed regulation, revision or amendment which are inconsistent with the Master Plan, and any recommendations concerning these inconsistencies and any other matters as the Board deems appropriate. The governing body, when considering the adoption of such regulation, revision or amendment, shall review the report of the Municipal Land Use Board and may disapprove or change any recommendation by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendations. The failure of the Municipal Land Use Board to transmit its report within the thirty-five-day period provided herein shall relieve the governing body from the requirements of this subsection. Nothing in this subsection shall be construed as diminishing the application of the provisions of N.J.S.A. 40:55D-32 if there be an Official Map, or Subsection a of N.J.S.A. 40:55D-62 to any zoning ordinance or any amendment or revision thereto.
G. 
The governing body may by ordinance provide for the reference of any matter or class of matters to the Municipal Land Use Board before final action thereon by the governing body or municipal officer having final authority thereon except for any matter under the jurisdiction of the Board of Adjustment. Whenever the Municipal Land Use Board shall have made a recommendation regarding a matter authorized by this subsection to another municipal body, such recommendation may be rejected only by a majority of the full authorized membership of such other body.
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 Land Use Board or within such further time as may be consented to by the applicant. Approval of a minor subdivision shall expire 190 days from the date of the Land Use Board's publication of the resolution of approval, unless within such period a plat in conformity with such approval and the provisions of the Map Filing Law, N.J.S.A. 46:23-9.9 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 must be signed by the Chairman and Secretary of the Land Use Board before it will be accepted for filing by the county recording officer.
B. 
Preliminary approval; site plans and subdivisions.
(1) 
Upon submission of a complete application for a site plan which involves 10 acres of land or less and 10 dwelling units or fewer or for a subdivision of 10 or fewer lots, the Land Use Board shall grant or deny preliminary approval within 45 days of certification of completeness of such submission or within such further time as may be consented to by the developer.
(2) 
Upon submission of a complete application for a site plan which involves more than 10 acres or more than 10 dwelling units or for a subdivision of more than 10 lots, the Land Use Board shall grant or deny preliminary approval within 95 days of the date of certification of completeness of such submission or within such further time as may be consented to by the developer. Otherwise, the Land Use Board shall be deemed to have granted preliminary approval for the subdivision or site plan.
C. 
Ancillary powers. Whenever the Land Use Board is called upon to exercise its ancillary powers before the granting of a variance as set forth in § 28-5G of this chapter, the Land Use Board shall grant or deny approval of the application within 95 days after submission by the developer of a complete application or within such further time as may be consented to by the applicant. Failure of the Land Use Board to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the Land Use Board to act shall be issued on request of the applicant.
D. 
Final approval. Application for final subdivision or site plan approval shall be granted or denied within 45 days of certification of completeness of the 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 Land Use 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.
A. 
Applications for development within the jurisdiction of the Land Use Board pursuant to N.J.S.A. 40:55D-1 et seq. shall be filed as follows: The applicant shall file 16 copies of the application, with all maps, reports and other required and supporting documentation. The applicant shall submit a complete application, complying with Chapters 191 and/or 209, no less than 28 days before the requested hearing date.
B. 
If any application for development (minor subdivision, preliminary major subdivision, final major subdivision, site plan or conditional use) is found to be incomplete, i.e., not providing all the information called for on the checklists adopted as part of this section, the developer shall be notified, in writing, of the deficiencies therein by the Board or the Board's designee for the determination of completeness within 45 days of the submission of such application, or it shall be deemed properly submitted. When it has been deemed by the Board or the Board's designee for the determination of completeness that an application meets all the requirements specified in this chapter and the rules and regulations of the Board, the Board Secretary shall immediately notify the applicant, in writing, that the application is complete. The application shall be deemed complete as of the date it was so certified for purposes of the commencement of the time periods for action by the Board.
C. 
After an application has been certified complete (or is deemed to be complete by virtue of the failure of the Board or its designee for the determination of completeness to take action within 45 days from the date of submission), the Board Secretary shall schedule said application for hearing.
D. 
The submission of an application for development shall be construed as granting permission to the reviewing board, its agents and consultants and other officials of the Borough to enter onto the property for the purpose of making inspections so as to aid in the review of the application.
No member of the Land Use Board shall act on any matter in which he or she has, either directly or indirectly, any personal or financial interest. Whenever any such member shall disqualify himself 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. 
Meetings of the Land Use Board shall be scheduled no less than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.
B. 
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. 
No action shall be taken at any meeting without a quorum being present.
D. 
All actions shall be taken by a majority vote of the members present at the meeting except as otherwise required by any provisions of N.J.S.A. 40:55D-1 et seq.
E. 
All regular meeting and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of N.J.S.A. 10:4-6 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 the reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Zoning Board Secretary.
Fees or charges for submission of applications or for rendering any service by the Land Use Board or any member of its administrative staffs for review of an application for development, for inspections or for taking of appeals shall be as set forth in any general fee ordinance of the Borough or as established in any ordinance regulating the use and development of land.
A. 
Rules. The Land Use Board shall make rules governing the conduct of hearings before such bodies, which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.
B. 
Oaths. The officer presiding at the hearing or such person as he may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of N.J.S.A. 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 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.
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. Each Board shall provide for the verbatim recording of the proceedings by either a stenographer or 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.
Whenever a hearing is required on an application for development pursuant to N.J.S.A. 40:55D-1 et seq. or pursuant to N.J.S.A. 40:55D-70a or b or pursuant to the determination of the municipal agency in question, the applicant shall give notice as required by the applicable statute.
Pursuant to the provisions of N.J.S.A. 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 the maximum fees provided for in said section of the statute, 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 § 28-13 of this chapter.
A. 
Each decision on any application for development shall be set forth in writing as a resolution of the Board, which shall include findings of fact and legal conclusions based thereon.
B. 
A copy of the decision shall be mailed by the Board within 10 days of the date of memorialization 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 Land Use Board Secretary, 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 municipality.
C. 
The decision of the Board shall be memorialized in accordance with the Municipal Land Use Law.
D. 
Failure of a motion to approve an application for development to receive the number of votes required for approval shall be deemed an action denying the application. An action resulting from the failure of a motion to approve an application shall be memorialized by resolution as provided above, notwithstanding the time at which the action occurs within the applicable time period for rendering a decision on the application.
[Amended 6-5-2019 by Ord. No. 12-2019]
A brief notice of every final decision shall be published in the official newspaper of the municipality. Such publication shall be arranged by the Secretary of the Land Use Board with the cost billed to the applicant's escrow. Said notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision.
A. 
Subdivisions and site plans. Pursuant to the provisions of N.J.S.A. 40:55D-39, every application for subdivision approval or site plan approval, or both, which is submitted to the Land Use 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.
B. 
All other applications. Pursuant to the provisions of N.J.S.A. 40:55D-65, every application for development (other than subdivision or site plan approval) which is submitted to the Land Use Board shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property for which the application is being made. In the event that it is shown that taxes or assessments are delinquent on said property, any approvals or other relief granted by either Board shall require payment of the same as a condition precedent to the issuance of any permits as a result of said approval or other relief.
A. 
A corporation or partnership applying to a municipal agency for permission to subdivide a parcel of land into six or more lots or applying for a variance to construct a multiple dwelling of 25 or more family units or for approval of a site to be used for commercial purposes shall list the names and addresses of all stockholders or individual partners owning at least 10% of its stock of any class or at least 10% of the interest in the partnership, as the case may be.
B. 
If a corporation or partnership owns 10% or more of the stock of a corporation or 10% or greater interest in a partnership, subject to disclosure pursuant to Subsection A of this section, that corporation or partnership shall list the names and addresses of its stockholders holding 10% or more of its stock, or of 10% or greater interest in the partnership, as the case may be, and this requirement shall be followed by every corporate stockholder or partner in a partnership until the names and addresses of the noncorporate stockholders and individual partners exceeding the ten-percent ownership criterion have been listed.
A. 
An appeal from any decision of the Land Use Board granting a use variance pursuant to the provisions of N.J.S.A. 40:55D-17d may be taken to the governing body, provided that such appeal shall be made within 10 days of the date of publication of such final decision of the Land Use Board.
B. 
Any appellant shall, within five days of service of the notice of appeal as hereinabove provided, arrange for a typed or written transcript to be prepared pursuant to N.J.S.A. 40:55D-10 for use by the governing body and shall pay a deposit for the estimated cost of such transcript. If the appellant is not obtaining the transcript from the municipal agency, then he shall, within 35 days of the service of the notice of appeal, submit to the Borough Clerk a transcript as otherwise obtained. Otherwise, the appeal may be dismissed for failure to prosecute.
C. 
Action by governing body.
(1) 
The Borough Council shall conclude a review of the record below not later than 95 days from the date of publication of the notice of the decision below, made pursuant to N.J.S.A. 40:55D-10, 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.
(2) 
The Borough Council may reverse, remand or affirm, wholly or in part, or may modify the final decision of the Land Use Board.
(3) 
The affirmative vote of a majority of the full authorized membership of the Borough Council shall be necessary to reverse, remand or modify any final action of either Board.
(4) 
An appeal to the Borough Council shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the Board from whose action the appeal is taken certifies to the governing body, after the notice of appeal shall have been filed with such 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 Board from whom the appeal is taken and on good cause shown.
(5) 
The Borough Council shall mail a copy of its 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.
Whenever a term which is defined in N.J.S.A. 40:55D-1 et seq., as amended, is used in this chapter or in Chapter 191, 209 or 242 of the Code of the Borough of Hopatcong, such term is intended to have the meaning set forth in the definition of such term found in said statute, unless said term is specifically defined in any of the aforementioned chapters, in which event said term, as defined, shall be construed to be applicable to all of said chapters unless a contrary intention is clearly expressed or implied from the context in which said term is used.
A. 
Whenever it is required as a condition to subdivision or site plan approval that a performance guaranty must be furnished in favor of the municipality in an amount not exceeding 120% of the estimated cost of any required improvements within a stated time, the time allowed for installation of the improvements for which the performance guaranty has been provided may be extended by the Borough Council by resolution. As a condition of or as part of any such extension, the amount of any performance guaranty shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation as determined as of the time of passage of the resolution.
B. 
Upon substantial completion of all required appurtenant utility improvements and the connection of same to public system, the obligor may notify the Borough Council in writing of such completion or substantial completion, as provided for in N.J.S.A. 40:55D-53d, and, after inspection and report of the Municipal Engineer, the Borough Council may approve, partially approve or reject the improvements. Where partial approval is granted, the bond of the obligor may be reduced, provided that 30% of the amount of the performance guaranty posted may be retained to insure completion of all improvements. Notice shall be given to the obligor as required by N.J.S.A. 40:55D-53e.
C. 
The obligor and any such bond shall reimburse the Borough for all reasonable inspection fees paid to the Municipal Engineer for any such inspections of improvements, and the developer shall post a deposit to cover such fees in such amount as required by the municipal agency having jurisdiction.
D. 
In lieu of the performance guaranty provided for in Subsection A above, the Borough reviewing board, in its sole and absolute discretion, may accept from an applicant an irrevocable bank letter of credit issued by a bank which is a member of the Federal Reserve System. Said letter shall be issued to the benefit of the Borough and shall allow the Borough to draw upon such credit in its sole and absolute discretion. The letter of credit shall be of a duration adequate for the length of the project. The amount of the letter of credit shall be as determined by the Borough Engineer.
[Amended 7-11-2012 by Ord. No. 17-2012]
Any variance from the terms of this chapter hereafter granted by the Land Use Board permitting the erection or alteration of any structure or structures or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance or unless such permitted use has actually been commenced within two years from the date of publication of the notice of the judgment or determination of the Land Use 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 Land Use Board to the governing body or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding. The Land Use Board may grant an extension of the approval without notice, provided that there have been no changes in the ordinance which would have affected the decision of the Land Use Board in granting the variances. Said extension will be for a maximum of two years. Any further extensions will require notice of Municipal Land Use Law and approval at the discretion of the Land Use Board.
All applicants for development before the Land Use Board shall establish an escrow account with the Borough in accordance with the fee schedule for the specific type of application, as set forth in this code.
A. 
All deposits for technical, professional review and inspection fees shall be kept in an escrow account for that purpose by the Borough. This account shall be managed by the Chief Financial Officer of the Borough, who shall administer the same in accordance with the terms of this section.
B. 
Whenever an amount of money in excess of $5,000 shall be deposited by an applicant with the municipality for professional services employed by the municipality or the approving board to review applications for development, for municipal inspection fees in accordance with this section, the money, until repaid or applied to the purposes for which it was deposited, including the applicant's portion of the interest earned thereon, except as otherwise provided by law, shall continue to be the property of the applicant and shall be held in trust by the municipality. Money deposited shall be held in escrow. The municipality receiving the money shall deposit it in a banking institution or savings and loan association in this state insured by an agency of the federal government or in any other fund or account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. The municipality shall notify the applicant, in writing, of the name and address of the institution or depository in which the deposit is made and the amount of the deposit. The municipality shall not be required to refund an amount of interest paid on a deposit which does not exceed $100, that the entire amount shall belong to the applicant and shall be refunded to the applicant by the municipality annually or at the time the deposit is repaid or applied to the purposes for which it was deposited, as the case may be; except that the municipality may retain for administrative expenses a sum equivalent to no more than 1/3 of the entire amount, which shall be in lieu of all other administrative and custodial expenses.
The Chief Financial Officer of the municipality shall make all of the payments to professionals for services rendered to the municipality or approving board for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under this article; such fees or charges to be based upon the ordinances herein. The application review and inspection charges shall be limited only to professional charges for review or applications, including review time spent at meetings of the approving board, review and preparation of documents and inspections of developments under construction and review by outside consultants when the application is of a nature beyond the scope of the expertise of the professionals normally utilized by the municipality. The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements. The charges by professionals 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. The Chief Financial Officer of the municipality shall administer the review and escrow fees as follows:
A. 
Each payment charged to a deposit for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service; and, for each date the service is performed, the hours spent 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 the schedules and procedures established by the Chief Financial Officer of the municipality. 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 the funds listing all deposits, interest earnings, disbursements and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis if monthly charges are $1,000 or less, or on a monthly basis if the monthly charges exceed $1,000. If an escrow account or deposit contains insufficient funds to enable the municipality or approving board to perform required application reviews or improvement inspections, the Chief Financial Officer of the municipality shall provide the applicant with a written notice of the insufficient escrow or deposit balance. In order for work to continue on the development or the applications, the applicant shall, within 10 days, post a deposit to the account in an amount to be agreed upon by the municipality or the approving board and the applicant. With regard to review fees, if the applicant fails to make said deposit within the prescribed time herein, the approving board shall be authorized to dismiss the application with prejudice subject to the right of the applicant to seek reinstatement of said application by written notice to the Chief Financial Officer that the deposits have been posted. The application will be reinstated upon written notification by the Chief Financial Officer to the approving board that said deposits are in fact posted. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds. With regard to inspection fees, the Borough Engineer shall not perform any inspection if insufficient funds to pay for the inspections are not on deposit. Failure to post or maintain balances in accordance with the requirements of these subsections will subject the developer to a stop-work order and/or suspension of construction permits.
B. 
The applicant and Chief Financial Officer shall follow the following closeout procedures for all deposits and escrow accounts established herein. Said procedures shall commence after the approving authority has granted final approval of the development application, including completion of all conditions of said approval, and/or has signed the appropriate subdivision map or deed or after all of the improvements have been approved. The applicant shall send written notice by certified mail to the Chief Financial Officer of the municipality and the approving board and to the relevant municipal professional that the application or the improvements, as the case may be, are completed. After receipt of such notice, the professional shall render a final bill to the Chief Financial Officer 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 has been put within 45 days of the receipt of the final bill. Any balances remaining in the deposit or escrow account, including interest, shall be refunded to the applicant along with the final accounting.
C. 
All professional charges for review of the application for development, review and preparation of documents or inspection of improvements shall be reasonable and necessary, given the status and progress of the application or construction review. Fees shall be charged only in connection with the application for development presently pending before the approving authority or upon review of compliance with conditions of approval or review of requests of modifications or amendments made by the applicant. The professionals 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 the state agency is necessary due to the effect of state approvals on the subdivision or site plan. Inspection fees shall be charged only for actual work shown on a subdivision or site plan or required by an approving resolution. Professionals inspecting improvements under construction shall charge only for inspections that are reasonably necessary to check the progress and quality of the work, and such inspections shall be reasonably based on the approved development plans and documents.
D. 
If the municipality retains a different professional or consultant in the place of the professional originally responsible for development, application review or inspection of improvements, the municipality or approving board shall be responsible for all time and expenses of the new professional to become familiar with the application of the project, and the municipality or approving board shall not bill the applicant or charge the deposit or the escrow account for any such services.