[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Editor's Note: This ordinance also repealed former Ch. 28,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:
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.
(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.
