Township of Stillwater, NJ Article V Procedures and General Provisions Applicable to Both Boards

§ 240-31 Conflicts of interest; removal of members.

A. No member or alternate member of the Planning Board or Zoning Board of Adjustment shall act on any matter in which he has either directly or indirectly a 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.

B. Members may be removed, after a public hearing, for inefficiency, neglect of duty, malfeasance in office or other good cause by the officer or body appointing them.

§ 240-32 Meetings.

A. Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less often 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. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application.

E. All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Law, N.J.S.A. 20:4-6 et seq. An executive session for the purpose of discussing and studying any matters to come before either Board shall not be deemed a regular or special meeting in accordance with the provisions of N.J.S.A. 40:55D-9.

§ 240-33 Minutes.

Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney, the action taken by the Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection; during normal business hours at the office of the Township Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party may be charged a fee for reproduction of the minutes for his use as provided for in the rules of the Board. The Board Secretary shall distribute copies of the minutes to each Board member and professional staff member within two weeks following the meeting.

§ 240-34 Hearings.

A. Rules. The Planning Board and Zoning Board of Adjustment may 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 with 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 the County and Municipal Investigations Law, 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 attorney, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.

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

E. Records. Each Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense.

F. Requirement for voting. When any hearing before the Planning Board or Zoning Board of Adjustment shall carry over two or more meetings, a member of the Board who was absent from one or more of the meetings shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings, provided that such Board member has available to him a transcript or a recording of the meeting from which he was absent and certified in writing to the Board that he has read such transcript or listened to such recording, in accordance with the provisions of N.J.S.A. 40:55D-10.2.

§ 240-35 Notice requirements for hearing.

Public notice of a hearing shall be given for an extension of approvals for five or more years under Subsection d of N.J.S.A. 40:55D-49 and Subsection b of N.J.S.A. 40:55D-52; for modification or elimination of a significant condition or conditions in a memorializing resolution in any situation wherein the application for development for which the memorializing resolution is proposed for adoption required public notice; for appeals of determinations of an administrative officer pursuant to Subsection a of N.J.S.A. 40:55D-70; for requests for interpretation of the Zoning Map or ordinance pursuant to Subsection b of N.J.S.A. 40:55D-70; application for a certificate certifying that a use or structure existed before the adoption of the ordinance which rendered the use or structure nonconforming pursuant to N.J.S.A. 40:55D-68; for any relief requested pursuant to N.J.S.A. 40:55D-60 or 40:55D-76 as part of an application for development otherwise excepted herein from public notice; and for any other applications for development with the following exceptions: minor subdivisions pursuant to N.J.S.A. 40:55D-47; minor site plan review pursuant to N.J.S.A. 40:55D-46; or final approval pursuant to N.J.S.A. 40:55D-50. The applicant shall give notice thereof as follows:

A. Public notice shall be given by publication in the official newspaper of the Township at least 10 days prior to the date of the hearing.

B. Notice to owners.

(1) Notice shall be given to the owners of all real property as shown on the current tax duplicate or duplicates, located within 200 feet in all directions of the property, which is the subject of such hearing, and whether located within or without the Township in which the applicant's land is located. Such notice shall be given by:

(a) Serving a copy thereof on the owner as shown on the current tax duplicate or his agent in charge of the property.

(b) Mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate. A return receipt shall not be required.

(2) Notice to a partnership owner may be made by serving upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.

(a) Public notice shall be given by publication in the official newspaper of the Township at least 10 days prior to the date of the hearing.

(b) Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality, which notice shall be in addition to the notice required to be given pursuant to Subsection B (1) of this section to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.

(c) Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the Official County Map or on the County Master Plan, adjoining other county land or situate within 200 feet of a municipal boundary.

(d) Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.

(e) Notice shall be given by personal service or certified mail to the State Planning Commissioner of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the Township Clerk pursuant to N.J.S.A. 40:55D-10b.

(f) In connection with an application for a major subdivision or a site plan not defined as a minor site plan under the Municipal Land Use Law, pursuant to the provisions of N.J.S.A. 40:55D-12, notice shall be given by personal service or certified mail to the corporate secretary of all public utilities and the general manager of all cable televisions companies that own land or any facility or that possess a right-of-way or easement within 200 feet in all directions of the property which is the subject of such hearing. An applicant seeking approval of a development which does not require notice shall be required to provide notice by personal service or certified mail to the corporate secretary of any public utility and the general manager of any cable television company that possesses a right-of-way or easement situated within the property limits of the property which is the subject of the application for development.

(g) All notices hereinabove specified in this subsection shall be given at least 10 days prior to the date fixed for hearing, and the applicant shall file an affidavit of proof of service with the Board holding the hearing on the application for development.

(h) Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.

(i) All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing, the nature of the matters to be considered and identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Municipal Tax Assessor's office and the location and times at which any maps and documents for which approval is sought are available as required by law.

§ 240-36 List of property owners furnished.

Pursuant to the provisions of N.J.S.A. 40:55D-12c, the Tax Assessor of the Township shall, within seven days after receipt of a request therefor and upon receipt of payment of a fee of $10, 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 §  240-35B.

§ 240-37 Completeness of application.

A. Certification.

(1) An application for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency when so certified:

(a) By the Zoning Board of Adjustment Engineer, who is the designated official of the Township to make such determinations with respect to all applications to the Zoning Board of Adjustment; or

[Amended 9-3-2019 by Ord. No. 2019-08]

(b) By the Planning Board Engineer, who is the designated official of the Township to make such determinations with respect to all applications made to the Planning Board.

(2) When an application has been deemed complete, the applicant will be advised of the hearing date assigned to the application. The applicant shall then give legal notice to all persons and entities entitled thereto pursuant to the Municipal Land Use Law and shall file an affidavit of service and of publication with the Board Secretary.

B. Failure to certify. In the event that the appropriate designated official does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon the expiration of the forty-five-day period for purposes of commencing the applicable time period unless:

(1) The application lacks information indicated on a checklist as hereinafter specified, a copy of which shall have been provided to the applicant; and

(2) The municipal agency or its authorized committee or designee has notified the applicant in writing of the deficiencies in the application within 45 days of submission of the application. The applicant may request that one or more of the submission requirements be waived, in which event the agency or its authorized committee shall grant or deny the request within 45 days. Nothing herein shall be construed as diminishing the applicant's obligation to prove in the application process that he is entitled to approval of the application. The municipal agency may subsequently require correction of any information found to be in error and submission of additional information not specified in the ordinance or any revisions in the accompanying documents as are reasonably necessary to make an informed decision as to whether the requirements necessary for the approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such additional information or any revisions in the accompanying documents so required by the agency.

(3) The applicant has not paid the appropriate fees and deposits provided for in Article IX.

C. Checklist requirements.[1] The checklist requirements for applications for development area as follows:

(1) Checklist for All Applications for Development. See Schedule A attached to and made a part of this chapter.

(2) Additional Checklist Requirements for Minor Site Plan, Minor Subdivision, Preliminary Site Plan, Preliminary Major Subdivision, Final Site Plan and Final Major Subdivision. See Schedule B attached to and made a part of this chapter.

(3) Additional Checklist Requirements for Appeals Pursuant to N.J.S.A. 40:55d-70a; for Ordinance or Map Interpretations or Special Questions under N.J.S.A. 40:55d-70b; for Variances under N.J.S.A. 40:55d-70c and N.J.S.A. 40:55d-70d; for Planning Variances Pursuant to N.J.S.A. 40:55d-34 and 40:55d-36; and for Conditional Uses. See Schedule C attached to and made a part of this chapter.

[1] Editor's Note: The checklists referred to in this subsection (Schedules A, B and C) are included at the end of this chapter.

§ 240-38 Decisions.

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 decision to the applicant, or if represented, then to his attorney, without separate charge. A copy of the decision shall also be mailed to all persons who have requested it and who have paid the fee prescribed by the Board for such service. A copy of the decision shall also be filed in the office of the Township Clerk, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same amount as those established for copies of other public documents in the Township.

C. The municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through:

(1) A resolution adopted at a meeting held within the time period provided in the act for action by the municipal agency on the application for development; or

(2) A memorializing resolution adopted at a meeting held no later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. If only one member who voted for the action attends the meeting at which the resolution is presented for adoption, the resolution may be adopted upon the vote of that member. An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required by Subsection B of this section and of § 240-39. If the municipal agency fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing with a stated time and the cost of the application, including attorney's fees, shall be assessed against the municipality.

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.

§ 240-39 Publication of decision.

A brief notice of every final decision shall be published in the official newspaper of the Township. Such publication shall be arranged by the Secretary of the Planning Board or Zoning Board of Adjustment, as the case may be, without separate charge to the applicant. Such notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision.

§ 240-40 Payment of taxes.

Pursuant to provisions of N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-65, every application for development submitted to the Planning Board or Zoning Board of Adjustment shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of such application, or if it is shown that taxes or assessments are delinquent on such property, any approvals or other relief granted by either Board shall be conditioned upon either the prompt payment of such taxes or assessments or the making of adequate provision for the payment thereof in such manner that the Township shall be adequately protected.

§ 240-41 Conditional approvals.

A. Conditions precedent. Whenever any application for development is approved subject to specified conditions, intended to be fulfilled before the approval becomes effective, other than conditions contemplated by N.J.S.A. 40:55D-22b, said conditional approval shall lapse and become null and void unless all specified conditions are fulfilled within 190 days of the date of conditional approval.

B. The fulfillment of all conditions precedent shall be reported in writing to the municipal agency, which may cause such reports to be verified in an appropriate manner. Only upon fulfillment of all conditions shall any subdivision map or site plan be assigned or any required building permit, occupancy permit or zoning permit be issued.

C. Conditions subsequent. Whenever any application for development is approved subject to conditions, which by their terms are incapable of being fulfilled or are not required to be fulfilled prior to the final approval of the application, the performance of which are not guaranteed by bonds or securities of any type, failure to fulfill any such condition within six months from the date of the final approval of the application for development shall be grounds for the issuance of a stop-work order by the enforcing official and the withholding of any zoning permit, certificate of occupancy or any other approval until such condition or conditions are fulfilled.

D. Nothing herein contained shall be construed as preventing the municipal agency from specifying a longer period of time within which any specific condition must be fulfilled or from granting upon an ex parte application, an extension of time for fulfilling a condition for good cause shown.

E. The fulfillment of all conditions shall be reported in writing to the municipal agency which may cause such reports to be verified in an appropriate manner. Only upon fulfillment of all conditions shall any subdivision map or site plan be signed or any required building permit, occupancy permit, zoning permit or other required approval be issued.

§ 240-42 Default approvals; applicant's obligations.

An applicant shall comply with the provisions of this section whenever the applicant wishes to claim approval of his application for development by reason of the failure of a municipal agency to grant or deny approval within the time periods specified in the Municipal Land use Law and this chapter.

A. The applicant shall provide notice of the default approval to the municipal agency and to all those entitled to notice by personal service or certified mail of the hearing on the application for development, but, for purposes of determining who is entitled to notice, the hearing on the application for development shall be deemed to have required public notice pursuant to Subsection a of N.J.S.A. 40:55D-12. The applicant shall arrange publication of the notice of the default in the official newspaper of the municipality, if there be one, or in the newspaper of general circulation in the municipality.

B. The applicant shall file an affidavit of proof of service and publication with the Secretary of the Planning Board or Zoning Board of Adjustment as the case may be.

§ 240-43 Appeals to Zoning Board of Adjustment.

An appeal to the Zoning Board of Adjustment may be taken by an interested party affected by any decision of an administrative officer of the Township based on or made in the enforcement of the zoning ordinance or Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal in the manner set forth in § 240-25 and in accordance with the provisions of the Municipal Land Use Law of 1975, N.J.S.A. 40:55D-69 et seq. The appellant shall give notice of such appeal in accordance with the provisions of § 240-35.

§ 240-44 Procedures for filing applications.

A. Applications and instructions. Application forms for submission of an application for development to a municipal agency, together with such instructions for filing as may have been approved by the Board, and a currently adopted checklist shall be available to all interested parties at the office of the Township Clerk for applications to the Zoning Board of Adjustment and at the office of the Secretary of the Planning Board for applications to that Board.

B. Filing with Zoning Officer; Planning Board Secretary. All applications for development addressed to the Zoning Board of Adjustment shall be filed with the Zoning Officer or designee, and all applications for development addressed to the Planning Board shall be filed with the Secretary of the Planning Board. All applications shall be accompanied by the fee estimated by the current fee schedule to meet the requirements of this chapter.

C. Forwarding to Planning Board Engineer or Zoning Officer. The Township Clerk or Planning Board Secretary, as the case may be, shall date-stamp each application upon receipt and forthwith forward the same to the official designated in § 240-37A, who shall, within 45 days from receipt, determine whether the application is complete, in accordance with the provisions of this chapter and the checklist which is adopted as a schedule hereto.

D. Notification to applicant. The Secretary of the Board having jurisdiction shall forthwith notify the applicant by certified mail that the application is complete and that the application has been set down for hearing on a specified date, giving the time of the hearing and the place where it will be held, and requiring the applicant to give notice by publication and personal or certified mail service at least 10 days prior to the date set for hearing, or that the application is incomplete for the reasons specified by the Zoning Officer or Planning Board Engineer. Incomplete applications and all accompanying submissions shall be returned to the applicant, together with the report of the Zoning Officer or Planning Board Engineer specifying the reasons why the application is not complete.

E. Filing proof of service and publication. The applicant shall file with the Zoning Officer or Planning Board Secretary, as appropriate, proof of service of personal or certified mail service and proof of publication as required by law at least two working days (Saturdays, Sundays and legal holidays excluded) prior to the hearing date so that adequacy of the notice can be determined. The Zoning Officer shall submit a report thereon to the Secretary of the Zoning Board of Adjustment prior to the hearing, if possible, or as soon thereafter as possible reporting any deficiency with respect to the publication or personal service required by this section.

§ 240-45 Special notices; when required.

A. Notice concerning the adoption, revision or amendment of the Master Plan shall be given in accordance with N.J.S.A. 40:55D-13.

B. Notice concerning the adoption, revision or amendment of a development regulation involving property situated within 200 feet of an adjoining municipality shall be given in accordance with N.J.S.A. 40:55D-15.

C. Notice concerning hearings on the adoption, revision or amendment of any development regulation, municipal capital improvement program or municipal official map shall be given to the Sussex County Planning Board in accordance with N.J.S.A. 40:55D-15b.

D. Notice of a hearing on an amendment to the zoning provisions of this chapter proposing a change to the classification or boundaries of the zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the Master Plan by the Planning Board, shall be given by the Township Clerk in accordance with N.J.S.A. 40:55D-62.1 and N.J.S.A. 40:55D-63. The Township Clerk shall execute affidavits of proof of service of the notices required pursuant thereto, and shall keep the affidavits on file along with proof of publication of the notice of the required public hearing on the proposed zoning change. Costs of the notice provision shall be the responsibility of the proponent of the amendment.

§ 240-46 Application by corporation or partnership; list of stockholders owning 10% of stock or 10% interest in partnership.

A corporation or partnership applying to either Board 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.

§ 240-47 Disclosure of 10% ownership interest of corporation or partnership which is 10% owner of the applicant corporation or partnership.

If a corporation or partnership owns 10% or more of the stock of the corporation, or 10% or greater interest in a partnership, subject to disclosure pursuant to § 240-46, 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 10% ownership criterion established hereinabove, have been listed.

§ 240-48 Failure to comply with disclosure requirements; penalties.

An application of any corporation or partnership which does not comply with Sections 512 and 523,[1] shall not be approved by the respective Board. Any corporation or partnership which conceals the names of the stockholders owning 10% or more of its stock, or of the individual partners owning a 10% or greater interest in the partnership, as the case may be, shall be subject to a fine of $1,000 to $10,000 which shall be recovered in the name of the Township in any court of record in the state in a summary manner pursuant to the penalty enforcement law, N.J.S.A. 2A:58-1 et seq.

[1] Editor's Note: Probably should be §§ 240-46 and 240-47.

§ 240-49 Time.

A. The period within which a Board must decide an application shall commence as of the date of certification of completeness and, if not certified as being complete within 45 days, then on such date as the application is deemed to be complete by operation of law, provided that nothing herein shall be construed to disallow an extension pursuant to Subsection C of this section.

B. The Secretary to the Board of Adjustment and Planning Board shall monitor the status of all pending applications, keep a record of members entitled to vote on each application, and keep each Board advised accordingly.

C. The Board may seek, and an applicant may grant, consent to an extension of time on the record or in writing. If an applicant fails to appear and the period within which to decide the application will expire prior to the next regularly scheduled meeting of the Board, such application will be dismissed without prejudice. It shall not be necessary to obtain the consent of any objector to an application in order that an application be extended.

§ 240-50 Power to rehear, modify or vacate decisions.

A. In the event that it appears to the Board on reasonable grounds that an applicant or witness has not been truthful, or that a mistake has been made, and such circumstances bear on facts which are essential in the granting of the relief sought by the applicant and were relied upon by the Board taking action, then, upon discovery of such misrepresentation, fraud or mistake, the Board may rehear the matter, either on application of an interested party or on its own motion when unusual circumstances so require in the interests of justice. In such event, the Board may, upon notice directed to the applicant and all other interested parties, require the applicant to appear before it for the purpose of explaining the testimony previously given at the hearing. At such subsequent hearing, it may be determined whether or not the testimony as given at the original hearing was, in fact, false or mistaken. Mistake or fraud in proceedings, left uncured, shall constitute grounds for a rescission.

B. At any time after the adoption of a resolution of memorialization, any person having an interest in such decision may move the Board for an order relaxing, vacating or modifying any term or condition of said decision by filing with the Board a request in the form of a letter setting forth the reasons therefor and the grounds relied upon. If the nature, extent, scope or consequence of the proposed change would be substantial in any manner or respect, a hearing shall be set and the movant shall give notice of such hearing in the same form and manner as otherwise required in the case of the original application. The Board, on its own motion, may, in a proper case, similarly order all parties in interest to show cause at the time and place fixed in the notice why the terms or provisions of any decision ought not to be vacated or modified.