A.
Every application for development shall be accompanied by a check payable to the Borough of Fair Lawn in accordance with the fee schedule set forth in Article X.
B.
The application charge is a flat fee to cover direct
administrative expenses and is nonrefundable.
C.
Where one application for development includes several
approval requests, the sum of the individual required fees shall be
paid.
D.
It is the applicant's responsibility to arrange for
a court reporter. The cost of taking testimony, transcribing it and
providing a copy of the transcript to the Borough shall be at the
expense of the applicant.
A.
Before recording of final subdivision plats or as
a condition of final site plan approval or as a condition to the issuance
of a zoning permit pursuant to N.J.S.A. 40:55D-65d, the approving
authority may require and shall accept in accordance with the standards
adopted by ordinance for the purpose of assuring the installation
and maintenance of on-tract and off-tract improvements:
(1)
Performance guaranty. The furnishing of a performance
guaranty in favor of the municipality in an amount not to exceed 120%
of the cost of installation, which cost shall be determined by the
Municipal Engineer according to the method of calculation set forth
in Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), for improvements
which the approving authority may deem necessary or appropriate. Such
improvements may include streets, grading, pavement, gutters, curbs,
sidewalks, streetlighting, shade trees, surveyor's monuments, as shown
on the final map and required by the Map Filing Law, P.L. 1960, c.
141 (N.J.S.A. 46:23-9.9 et seq.), water mains, culverts, storm sewers,
sanitary sewers or other means of sewage disposal, drainage structures,
erosion control and sedimentation control devices, public improvements
of open space and, in the case of site plans only, other on-site improvements
and landscaping.
(a)
Prior to the granting of final approval, the
subdivider shall have installed or have furnished performance guaranties
for the ultimate installation of the following:
[1]
Streets. All of the streets shall consist of
a subbase of two-inch-thick dense graded aggregate base course, base
of four-inch-thick bituminous stabilized base course (New Jersey Department
of Transportation Mix I-2) and a surface course of two-inch-thick
bituminous concrete surface course (New Jersey Department of Transportation
Mix I-5). If design requirements determine that additional pavement
thickness is required, the applicant shall design this with approval
of the Borough Engineer. All construction is subject to inspection
and approval by the Borough Engineer.
[2]
Street signs. Street name signs shall be placed
at all street intersections within or abutting the subdivision. Such
signs shall be of a type approved by the Borough and shall be placed
in accordance with the standards of the Borough.
[3]
Curbs. All curbs shall be constructed with dimensions
of six inches by eight inches by 18 inches by 10 feet with Class "B"
concrete and subject to inspection and approval by the Borough Engineer.
[4]
Sidewalks. All sidewalks shall be constructed
with four inches thickness, minimum four feet wide and made of Class
"B" concrete and subject to inspection and approval by the Borough
Engineer. Sidewalk thickness and width is to be determined by the
Borough Engineer.
[5]
Depressed Curbs. Depressed curbs shall be a
minimum of 12 in width and a maximum of 30 feet in width, except in
the case of one- and two-family dwellings where the maximum width
is 20 feet and constructed of Class "B" concrete and subject to inspection
and approval by the Borough Engineer.
[6]
Shade Trees. Shade trees shall be at least two
inches in caliper, placed 35 feet apart and located on the street
line so as not to interfere with utilities or sidewalks and shall
be of the following types: Norway Maple, Oriental Plane.
[7]
Topsoil protection. No topsoil shall be removed
from the site or used as spoil. Topsoil moved during the course of
construction shall be redistributed so as to provide at least six
inches of cover to all areas of the subdivision and shall be stabilized
by seeding or planting.
[9]
Water mains, culverts, storm sewers, sanitary
sewers and hydrants. All such installations shall be properly connected
with an approved system and shall be adequate to handle all present
and probable future development and shall be in accordance with the
Design Standards and Specifications of the Borough and subject to
the inspection and approval of the Borough Engineer.
(b)
All of the above-listed improvements shall be
subject to inspection and approval by the Borough Engineer who shall
be notified by the developer at least 24 hours prior to the start
of construction. No underground installation shall be covered until
inspected and approved.
(c)
The Municipal Engineer shall prepare an itemized
cost estimate of the improvements covered by the performance guaranty,
which itemized cost estimate shall be appended to each performance
guaranty posted by the obligor.
(2)
Maintenance guaranty. There shall be provision for
a maintenance guaranty to be posted with the governing body for a
period not to exceed two years after final acceptance of the improvement,
in an amount not to exceed 15% of the cost of the improvement, which
cost shall be determined by the Municipal Engineer according to the
method of calculation set forth in Section 15 of P.L. 1991, c. 256
(N.J.S.A. 40:55D-53.4). In the event that other governmental agencies
or public utilities will own the utilities to be installed or the
improvements are covered by a performance or maintenance guaranty
to another governmental agency, no performance or maintenance guaranty,
as the case may be, shall be required by the municipality for such
utilities or improvements.
B.
The time allowed for installation of the improvements
for which the performance guaranty has been provided may be extended
by the governing body by resolution. As a condition or as part of
any such extension, the amount of any performance guaranty shall be
increased or reduced, as the case may be, to an amount not to exceed
120% of the cost of the installation, which cost shall be determined
by the Municipal Engineer according to the method of calculation set
forth in Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), as
of the time of the passage of the resolution.
C.
If the required improvements are not completed or
corrected in accordance with the performance guaranty, the obligor
and surety, if any, shall be liable thereon to the municipality for
the reasonable cost of the improvements not completed or corrected
and the municipality may either prior to or after receipt of the proceeds
thereof complete such improvements. Such completion or correction
of improvements shall be subject to the public bidding requirements
of the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1
et seq.).
D.
List of uncompleted or unsatisfactorily completed
improvements.
(1)
Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements and the connection of same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Municipal Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the governing body and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.
(2)
The list prepared by the Municipal Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Municipal Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guaranty relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section.
E.
Approval or rejection of improvements.
(1)
The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Municipal Engineer or reject any or all of these improvements upon the establishment in the resolution of cause for rejection and shall approve and authorize the amount of reduction to be made in the performance guaranty relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guaranty, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the performance guaranty posted may be retained to ensure acceptable completion of all improvements.
(2)
If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection D of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Municipal Engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(3)
If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guaranty for the complete and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guaranty for complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(4)
In the event that the obligor has made a cash deposit
with the municipality or approving authority as part of the performance
guaranty, then any partial reduction granted in the performance guaranty
pursuant to this subsection shall be applied to the cash deposit in
the same proportion as the original cash deposit bears to the full
amount of the performance guaranty.
F.
If any portion of the required improvements is rejected,
the approving authority may require the obligor to complete or correct
such improvements and, upon completion or correction, the same procedure
of notification, as set forth in this section shall be followed.
G.
Nothing herein, however, shall be construed to limit
the right of the obligor to contest by legal proceedings any determination
of the governing body or the Municipal Engineer.
H.
The obligor shall reimburse the municipality for all
reasonable inspection fees paid to the Municipal Engineer for the
foregoing inspection of improvements, provided that the municipality
may require of the developer a deposit for the inspection fees in
an amount not to exceed, except for extraordinary circumstances, the
greater of $500 or 5% of the cost of improvements, which cost shall
be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A.
40:55D-53.4). For those developments for which the reasonably anticipated
fees are less than $10,000, fees may, at the option of the developer,
be paid in two installments. The initial amount deposited by a developer
shall be 50% of the reasonably anticipated fees. When the balance
on deposit drops to 10% of the reasonably anticipated fees because
the amount deposited by the developer has been reduced by the amount
paid to the Municipal Engineer for inspection, the developer shall
deposit the remaining 50% of the anticipated inspection fees. For
those developments for which the reasonably anticipated fees are $10,000
or greater, fees may, at the option of the developer, be paid in four
installments. The initial amount deposited by a developer shall be
25% of the reasonably anticipated fees. When the balance on deposit
drops to 10% of the reasonably anticipated fees because the amount
deposited by the developer has been reduced by the amount paid to
the Municipal Engineer for inspection, the developer shall make additional
deposits of 25% of the reasonably anticipated fees. The Municipal
Engineer shall not perform any inspection if sufficient funds to pay
for those inspections are not on deposit.
I.
In the event that final approval is by stages or sections
of development pursuant to Subsection a of Section 29 of P.L. 1975,
c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall
be applied by stage or section.
J.
To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guaranty required pursuant to Subsection A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Municipal Engineer.
K.
Inspection and tests.
(1)
All improvements and utility installations shall be inspected during the time of their installation by the Borough Engineer. On-site private improvements relating to drainage, landscaping and circulation as shown on an approved final subdivision or site plan shall also be subject to inspection and approval by the Borough Engineer. The cost of said inspection shall be the responsibility of the owner, who shall deposit with the Borough Treasurer a fee in accordance with Article X.
(2)
In no case shall any improvements or utility installation
be done without permission from the Borough Engineer. At least two
working days' notice shall be given to the Borough Engineer prior
to any construction so that the Borough Engineer or a qualified representative
may be present at the time the work is to be done.
(3)
Streets shall not be paved with a wearing course until
all heavy construction is completed. Shade trees shall not be planted
until all grading and earthmoving is completed. The seeding of grass
and the placing of the surveyor's monuments shall be among the last
operations.
(4)
The Borough Engineer's office shall be notified after
each of the following phases of the work has been completed the work
may be inspected:
(a)
Road subgrade.
(b)
Curb and gutter forms.
(c)
Curbs and gutters.
(d)
Road paving.
(e)
Sidewalk forms.
(f)
Sidewalks.
(g)
Drainage pipes and other drainage construction.
(h)
Street name signs.
(i)
Monuments.
(j)
Sanitary sewers.
(k)
Detention and/or retention basins.
(l)
Topsoil, seeding and plantings.
(5)
Inspection by the Borough of the installation of improvements
and utilities shall not operate to subject Fair Lawn Borough to any
future liability, including liability for claims or suits, that may
arise because of defects or negligence during construction or at any
time thereafter. The responsibility to maintain safe conditions at
all times during construction and to provide proper utilities and
improvements is upon the owner and the owner's contractors, if any.
(6)
Upon the completion or substantial completion of all
required utility improvements and connection to the public system,
the obligor may notify the Borough Council, in writing, by certified
mail in care of the Municipal Clerk, of the completion or substantial
completion of the improvements and shall simultaneously send a certified
copy of such notice to the Borough Engineer. Within 10 working days
following receipt of the notice, the Borough Engineer shall inspect
all the improvements of which such notice has been given and file
a detailed report, in writing, with the Borough Council, indicating
either approval, partial approval or rejection of such improvements
with a statement of the reasons for any total or partial rejection.
The costs of the improvements as approved or rejected shall be set
forth.
L.
Conditions and acceptance of improvements. The approval
of any application for development by the Borough shall in no way
be construed as acceptance of any street or drainage system or any
other improvement, nor shall such approval obligate the Borough in
any way to exercise jurisdiction over such street or drainage system
or other improvement. No improvement shall be accepted by the governing
body unless and until all of the following conditions have been met:
(1)
The Borough Engineer shall have certified, in writing,
that the improvements are complete and that they comply with the requirements
of this chapter.
(2)
The final application for development shall have been
approved by the Board.
(3)
The owner shall have filed with the Borough Council
a maintenance guaranty in an amount equal to not more than 15% of
the cost of installing the improvements, to run for a period of two
years. The procedures and requirements governing such maintenance
guaranty shall be identical with the procedures and requirements for
a performance guaranty set forth in this chapter. The requirements
for a maintenance guaranty may be waived by the Borough Council only
if the Borough Engineer has certified that the improvements have been
in continuous use for not less than two years from the date the Borough
Engineer certified completion of such improvements and during this
period the owner has maintained the improvements in a satisfactory
manner.
(4)
The owner shall have provided an as-built plan and
profiles of all utilities and roads (three black-and-white prints,
plus a Mylar copy, to be sent to the Borough Engineer) with certification
signed and sealed by a New Jersey licensed professional engineer as
to the actual construction as approved by the Borough Engineer.
A municipality shall not require that a maintenance
guaranty required pursuant to Section 41 of P.L. 1975, c. 291 (N.J.S.A.
40:55D-53), be in cash or that more than 10% of a performance guaranty
pursuant to that section be in cash. At the developer's option, some
or all of a maintenance guaranty may be in cash or more than 10% of
a performance guaranty in cash.
The cost of the installation of improvements
for the purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53),
shall be estimated by the Municipal Engineer based on documented construction
costs for public improvements prevailing in the general area of the
municipality. The developer may appeal the Municipal Engineer s estimate
to the governing body. The governing body shall decide the appeal
within 45 days of receipt of the appeal in writing by the Municipal
Clerk. After the developer posts a guaranty with the municipality
based on the cost of the installation of improvements as determined
by the governing body, legal action may be instituted within one year
of the posting in order to preserve the right to a judicial determination
as to the fairness and reasonableness of the amount of the guaranty.
The approving authority shall, for the purposes
of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53), accept a
performance guaranty or maintenance guaranty which is an irrevocable
letter of credit if it:
A.
Constitutes an unconditional payment obligation of
the issuer running solely to the municipality for an express initial
period of time in the amount determined pursuant to Section 41 of
P.L. 1975, c. 291 (N.J.S.A. 40:55D-53);
B.
Is issued by a banking or savings institution authorized
to do business in this state;
C.
Is for a period of time at least one year; and
D.
Permits the municipality to draw upon the letter of
credit if the obligor fails to furnish another letter of credit which
complies with the provisions of this section 30 days or more in advance
of the expiration date of the letter of credit or such longer period
in advance thereof as is stated in the letter of credit.
If an approving authority includes as a condition
of approval of an application for development pursuant to P.L. 1975,
c. 291 (N.J.S.A. 40:55D-1 et seq.), the installation of streetlighting
on a dedicated public street connected to a public utility, then upon
notification in writing by the developer to the approving authority
and governing body of the municipality that the streetlighting on
a dedicated public street has been installed and accepted for service
by the public utility and that certificates of occupancy have been
issued for at least 50% of the dwelling units and 50% of the floor
area of the nonresidential uses on the dedicated public street or
portion thereof indicated by section pursuant to Section 29 of P.L.
1975, c. 291 (N.J.S.A. 40:55D-38), the municipality shall, within
30 days following receipt of the notification, make appropriate arrangements
with the public utility for and assume the payment of, the costs of
the streetlighting on the dedicated public street on a continuing
basis. Compliance by the municipality with the provisions of this
section shall not be deemed to constitute acceptance of the street
by the municipality.
[Amended 5-22-2007 by Ord. No. 2079-2007]
Where the need for off-tract improvements for
water, sewer, drainage and street improvements and for other improvements
as provided by law are, in whole or in part, made necessary by the
application, a determination of the pro-rata contribution of the applicant
for said off-tract improvements shall be made.
A.
Allocation of costs; criteria in determining allocation.
The allocation of costs for off-tract improvements as between the
applicant, other property owners and the Borough or any one or more
of the foregoing shall be determined by the board of jurisdiction,
with the assistance of the appropriate Borough agencies, on the basis
of the total costs of the off-tract improvements, the needs created
by the application, population and land use projections for the general
area of the applicant's property and other areas to be served by the
off-site improvements, the estimated time of construction of the off-site
improvements and the condition and periods of usefulness, which periods
may be based upon the criteria of N.J.S.A. 40A:2-22. Requirements
for off-tract improvements shall be consistent with N.J.S.A. 40:55D-42.
In addition, the following criteria may also be considered, as well
as any other reasonable criteria the board of jurisdiction feels are
necessary to protect the health, safety and general welfare of the
Borough:
(1)
Streets, curbs, sidewalks, shade trees, streetlights,
street signs and traffic light improvements may also be based upon
the anticipated increase of traffic generated by the application.
In determining such traffic increase, the board of jurisdiction may
consider traffic counts, existing and projected traffic patterns,
quality of roads and sidewalks in the area and other factors related
to the need created by the application and the anticipated benefit
thereto.
(3)
Water supply and distribution facilities, including
but not limited to fire hydrants, may also be based upon the added
facilities required by the total anticipated water use requirements
of the applicant and other properties in the general area benefitting
therefrom.
(4)
Sewerage facilities may be based upon the proportion
that the total anticipated volume of sewage effluent of the applicant's
property and other properties connected to the new facility bears
to the existing capacity of existing sewerage facilities, including
but not limited to lines and other appurtenances leading to and servicing
the applicant's property. Consideration may also be given to the types
of effluent and particular problems requiring special equipment or
added costs for treatment.
B.
Determination of cost of improvements. The cost of
installation of the required off-tract improvements shall be determined
by the board of jurisdiction with the advice of the Borough Engineer
and appropriate Borough agencies.
C.
Manner of construction. When those estimates are received,
the Mayor and Borough Council shall then decide whether the off-tract
improvement is to be constructed:
D.
Amount of contribution.
(1)
If the improvement is to be constructed by the Borough
as a general improvement, the applicant shall be required to provide
a cash deposit to the Borough equal to the applicant's pro-rata fair
share of the improvement.
(2)
If the improvement is to be constructed by the applicant,
then it shall be consistent with the developer's agreement.
E.
Payment of allocated cost.
(1)
The estimated costs of the off-tract improvement allocated
to the applicant if deposited in cash shall be paid by the applicant
to the Borough Treasurer, who shall provide a suitable depository
therefor, and such funds shall be used only for the off-tract improvements
for which they are deposited or improvements serving the same purpose,
unless such improvements are not initiated by the Borough within a
period of 10 years from the date of payment, after which time said
funds so deposited shall be returned, together with accumulated interest
or other income thereon, if any.
(2)
In the event that the payment by the applicant to
the Borough Treasurer provided for herein is less than its share of
the actual cost of the off-tract improvements, and the developer has
not completed its development, then it shall be required to pay its
appropriate share of the cost thereof.
(3)
In the event that the payment by the applicant to
the Borough Treasurer provided for above is more than its appropriate
share of the actual cost of installation of the off-tract improvements,
it or its successor or assigns shall be repaid an amount equal to
the difference between the deposit and its share of the actual cost.
(4)
If the applicant shall deem that any of the amounts
so estimated by the board of jurisdiction are unreasonable, it may
challenge them and seek to have them revised in appropriate proceedings
brought to compel subdivision or site plan approval.
(5)
If the applicant and the board of jurisdiction cannot
agree with respect to the applicant's fair share of the actual cost
of the off-tract improvement, no approval shall be granted; provided,
however, that the applicant may challenge such determination and seek
to have it revised in appropriate judicial proceedings in order to
compel subdivision or site plan approval.
F.
Installation of improvements by applicant. At the
discretion and option of the Borough and with the consent of the applicant,
the Borough may enter into a contract with the applicant providing
for the installation and construction of the off-tract improvements
by the applicant upon contribution by the Borough of the remaining
unallocated portion of the cost of the off-tract improvement.
G.
Compliance with design criteria. Should the applicant
and the Borough enter into a contract for the construction and erection
of the off-tract improvements to be done by the applicant, it shall
observe all requirements and principles of this chapter in the design
of such improvements.
H.
Resolution of cost-assessment conflicts. Where the
applicant or any property owner cannot agree with the board of jurisdiction
and the governing body as to the appropriate share of the cost of
any off-tract improvement or the manner in which it was assessed as
a local or general Borough improvement, that dispute shall be resolved
in a court of appropriate jurisdiction.
