Borough of Fanwood, NJ Article V Hearings

§ 184-22 When required.

A. Public hearings by the Board shall be required for the following:

(1) On each application for development, except when such application is specifically exempted from public hearing by this chapter.

(2) On any adoption, revision or amendment of the Master Plan.

(3) On appeal from the action of the Zoning Officer or other administrative appeal within its jurisdiction.

(4) On an application for an interpretation of the zoning regulations pursuant to Article VIII, or an application for certification of a nonconforming use or structure pursuant to Article XX.

B. The Mayor and Borough Council shall hold a hearing on any adoption, revision, or amendment of this chapter or of any development regulation.

C. The Board or Mayor and Borough Council, as applicable, shall hold a hearing on any adoption, revision or amendment of a capital improvement program.

§ 184-23 Rules; hearing dates.

Pursuant to N.J.S.A. 40:55D-10, the Board shall adopt rules governing its hearings. Upon the determination that an appeal or application is complete pursuant to Article IX, the Board shall schedule a hearing date in accordance with its rules.

§ 184-24 Notice of hearing; when required.

Pursuant to N.J.S.A. 40:55D-12, public notice as specified herein shall be given for all hearings involving the following:

A. Any application for development which involves a request for a variance;

B. An application for interpretation of the zoning regulations; provided, however, that such notice shall be both published and served as set forth in Articles V and VIII if the application involves a specific property, and further provided, that such notice shall be limited to publication as set forth in § 184-25 if the application does not involve a specific property.

C. An application for preliminary major site plan approval;

D. An application for preliminary major subdivision approval;

E. An application for certification of a nonconforming use or structure;

F. An application for conditional use approval;

G. The adoption, revision or amendment of the Master Plan;

H. The adoption, revision or amendment of this chapter or any other development regulation;

I. The adoption, revision or amendment of a capital improvement program; and

J. Appeals of determinations of administrative officers pursuant to N.J.S.A. 40:55D-70b.

§ 184-25 Notice of hearings for development applications.

The following provisions shall apply to public notice of hearings for development applications, as mandated by N.J.S.A. 40:55D-12, including but not limited to:

A. Content. Public notice of hearings for development applications, including variance applications, shall state the following:

(1) The date, time and place of the hearing;

(2) The nature of the matters to be considered, provided that when conditional use approval, variance relief or direction for the issuance of a permit pursuant to this chapter is requested, the notice shall include reference to the request for conditional use approval, variance or direction for issuance of a permit, as the case may be;

(3) An 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 Tax Assessor's office; and

(4) The location and times at which any maps and documents for which approval is sought are available for inspection in the office of the Board Secretary.

B. Service of notice; parties entitled to notice. Public notice shall be given by the applicant. Notice shall be given at least 10 days prior to the date of the hearing. The date of the hearing shall not count as one of the 10 days. Public notice shall be given by publication in the official newspaper of the Borough, if there is one, or in a newspaper of general circulation in the Borough.

(1) Notice shall also be given to members of the public as follows:

(a) Notice of hearing shall be given to the owners, including owners of condominium units as shown on the current tax duplicates, of all real property within 200 feet in all directions of the property which is the subject of such hearing. Notice shall be given as follows:

[1] Notice shall be given by serving a copy thereof on the property owner as shown on the current tax duplicate, or his/her agent in charge of the property, or mailing a copy thereof by certified mail to the property owner at his/her address as shown on the current tax duplicate.

[2] Notice to a partnership owner or limited liability company owner may be made upon any partner or as otherwise permitted by law.

[3] Notice to a corporate owner or professional corporation 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.

(2) Notice of 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.

(3) Notice shall be given by personal service or certified mail to the Union County Planning Board ("County Planning Board") of hearings on applications for development involving property adjacent to an existing county road or proposed road shown on the official county map or on the Union County Master Plan, adjoining other county land or situated within 200 feet of a municipal boundary. Notice shall not be given for applications on a single-family house.

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

(5) Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. The notice shall include a copy of any maps or documents required to be on file with the Board Secretary pursuant to Article IX.

(6) Notice of hearings on an application for development involving a major subdivision or preliminary site plan, excluding minor site plans, shall be given to a public utility, cable television company or local utility which possesses a right-of-way or easement within the Borough and which has registered with the Borough in accordance with the Municipal Land Use Law, by serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility, or mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.

(7) Notice of hearings on an application for development shall be given by personal service or certified mail to the Scotch Plains-Fanwood Board of Education.

C. Request for certified list of property owners within 200 feet. Upon written request of an applicant, the administrative officer shall, within seven days of the date the application is deemed complete, make and certify a list from the current tax duplicates of the names and addresses of owners to whom the applicant is required to give notice. In addition, the administrative officer shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice as a public utility, cable television company or local utility. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner or to any public utility, cable television company or local utility not on the list shall not invalidate any hearing or proceeding.

D. Effect of mailing notice. Any notice made by certified mail as stipulated above shall be deemed complete upon mailing.

E. Proof of service of notice. The applicant for development shall file an affidavit of proof of service with the Board.

§ 184-26 Notice of hearings for the Master Plan.

The following provisions shall apply to public notice of hearings for adoption, revision or amendment of the Master Plan:

A. Content. Public notice of hearings for adoption, revision or amendment of the Master Plan shall state the following:

(1) The date, time and place of the hearing;

(2) The nature of the matters to be considered;

B. Notice of hearings for the Master Plan. Notice shall be given by the Board at least 10 days prior to the date of the hearing. The date of the hearing shall not count as one of the 10 days. Public notice shall be given by publication in the official newspaper of the Borough, if there is one, or in a newspaper of general circulation in the Borough. Notice shall also be given to the following parties as specified below:

(1) Notice shall be given by personal service or certified mail to the Clerk of an adjoining municipality of all hearings on adoption, revision or amendment of the Borough Master Plan involving property situated within 200 feet of such adjoining Municipality.

(2) Notice shall be given by personal service or certified mail to the County Planning Board of all hearings on the adoption, revision or amendment of the Borough Master Plan. Such notice shall include a copy of any such proposed Master Plan, or any revision or amendment thereto.

(3) Notice shall be given by personal service or certified mail to the County Planning Board of the adoption, revision or amendment of the Borough Master Plan. Such notice shall be given not more than 30 days after the date of such adoption, revision or amendment and shall include a copy of the Master Plan, or revision or amendment thereto.

C. Effect of mailing notice. Any notice made by certified mail as stipulated above shall be deemed complete upon mailing.

§ 184-27 Notice of hearings for development regulations or capital improvement programs.

The following provisions shall apply to public notice of hearings for adoption, revision or amendment of this chapter, other development regulations or the capital improvement program:

A. CONTENT. Public notice of hearings for adoption, revision or amendment of this chapter, other development regulations, or the capital improvement program shall provide the following:

(1) A statement of the date, time and place of the hearing;

(2) A statement of the nature of the matters to be considered;

(3) The location and times at which any maps and documents which are the subject of said adoption, revision or amendment are available for inspection in the office of the Borough Clerk;

(4) In the case of zone district classification or boundary changes with enhanced notice requirements pursuant to Article VIII, the notice shall also provide an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicates in the Tax Assessor's office; and

(5) In the case of notice to the County Planning Board, a copy of the proposed or adopted development regulation, official map, capital improvement program, or any proposed or adopted revision or amendment thereto, as the case may be, shall be included with the notice.

B. Service of notice; parties entitled to notice. Notice shall be given by the Governing Body at least 10 days prior to the date of the hearing. The date of the hearing shall not count as one of the 10 days. Notice shall be given to the following parties as specified below:

(1) Notice shall be given by personal service or certified mail to the Clerk of an adjoining municipality of all hearings on adoption, revision or amendment of any development regulation involving property situated with 200 feet of such adjoining municipality.

(2) Notice shall be given by personal service or certified mail to the County Planning Board of all hearings on the adoption, revision or amendment of any development regulation.

(3) Notice of a hearing on an amendment to the zoning regulations, which amendment proposes a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the Master Plan by the Board pursuant to N.J.S.A. 40:55D-89, shall be given in the following manner:

(a) Notice shall be given by serving a copy thereof on the property owner as shown on the current tax duplicate, or his or her agent in charge of the property, or mailing a copy thereof by certified mail and regular mail to the property owner at his address as shown on the said current tax duplicate.

(b) Notice to a partnership owner may be made by service upon any partner.

(c) Notice to a corporate owner, including cooperatives, may be made by service upon its president, a vice president, secretary or other person authorized by appointment or bylaw to accept service on behalf of the corporation.

(d) Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the boundaries of the district which is the subject of the hearing, may be made in the same manner as to a corporation in addition to notice to unit owners, co-owners or homeowners on account of such common elements or areas.

(e) The Borough Clerk shall execute affidavits of proof of service of the notices required for the hearings on zoning district classification or boundary changes, and shall keep the affidavits on file along with the proof of publication of the notice of the required public hearing on the proposed zoning regulation change. Costs of the notice provision shall be the responsibility of the proponent of the amendment.

(4) Notice shall be given by personal service or certified mail to the County Planning Board of the adoption, revision or amendment of the Borough capital improvement program or Official Map. Such notice shall be given not more than 30 days after the date of such adoption, revision or amendment.

C. Effect of mailing notice. Any notice made by certified mail as stipulated above shall be deemed complete upon mailing.

§ 184-28 Filing of maps and documents; deadline.

Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing, during normal business hours in the office of the Board Secretary. An additional copy shall be on file at the Fanwood Memorial Library to facilitate public inspection. The applicant may produce other documents, records, or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

§ 184-29 Witnesses; evidence.

The following provisions shall govern the testimony of witnesses and production of evidence at hearings conducted pursuant to this chapter:

A. The officer presiding at the hearing or such person as he/she may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties. The provisions of the County and Municipal Investigations Law shall apply.

B. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer. The right of cross-examination shall be permitted to all interested parties through their attorneys, or themselves.

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

§ 184-30 Public comment.

In addition to receiving testimony, the Board shall afford members of the public the right to comment upon any application for development pending before the Board. Such comments may be presented in written form, as well as orally. The chair of the Board or a majority of the Board may vote to limit the time allowed for oral public comment, to be reasonably determined under the circumstances. The public shall have the right to file, in person or by mail, written comments with the Secretary of the Board at least five business days before the final hearing on the application for development. For purposes of determining dates, the day of the final hearing shall not be included. At least 25 copies of such comments shall be provided to the Secretary. Filing of such comments must be accomplished as of the date of receipt and not the date of mailing. Submission of such comments shall be accompanied by an affidavit or certification attesting to the fact that a copy of the written comments have been transmitted to the applicant or its counsel within the same time and the same manner as submitted to the Board. Failure to provide such comments in a timely manner and in full accordance with this section may result in the Board determining not to consider same. The applicant shall be entitled to respond in writing to any such comments by filing 25 copies of same no later than two days prior to the date of the final hearing, not including the day of the final hearing itself. Comment is not to be deemed testimony and the applicant need not cross-examine the member of the public providing such oral comments. It is, for purposes of this section to be deemed to be general information, but not generally evidentiary unless otherwise determined by the Board. Such comments may be considered by the Board in the nature of a filing by an amicus curiae, and need not be under oath.

§ 184-31 Voting procedures.

The following voting procedures shall apply for public hearings held pursuant to this chapter. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.

A. All actions shall be taken by a majority vote of the members present at the hearing, except as otherwise provided by this chapter and the Municipal Land Use Law.

B. A member of the Board who was absent for one or more of the meetings at which a hearing was held or was not a member of the Board at that time, shall be eligible to vote on the matter upon which the hearing was conducted, if such member has available to him/her the transcript or recording of all of the hearing from which he/she was absent or was not a member, and certified in writing to the agency that he/she has read such transcript or listened to such recording.

C. 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. A tie vote shall be deemed a failure to receive the number of votes required.

§ 184-32 Record of decisions.

The Board shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The Board shall provide the findings and conclusions through either resolution adopted at a meeting held within the time period provided in the act for action by the Board on the application for development; or a memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the Board voted to grant or deny approval. The following provisions shall apply to memorializing resolutions:

A. Only the members of the Board who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. 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.

B. An action to deny, 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.

C. The vote of any memorializing resolution shall be deemed to be a memorialization of the action of the Board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required by § 184-33.

D. If the Board fails to adopt a resolution or memorializing resolution as herein above specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the Board to reduce its findings and conclusions to writing within a stated time and the cost of the application, including attorney's fees, shall be assessed against the Borough.

§ 184-33 Mailing, filing and publication of decisions.

Following adoption of a resolution on a development application by the Board, the resolution shall be mailed, filed and published as follows:

A. 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 to his attorney, without separate charge. A copy of the decision shall also be mailed to all persons who have requested it and who paid the fee prescribed by the Board for such service.

B. A copy of the decision shall also be filed in the office of the Borough Clerk, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the municipality.

C. A copy of the decision shall be filed in the Fanwood Memorial Library.

D. A brief notice of every final decision shall be published in the official newspaper of the Borough. Such publication shall be arranged by the Secretary of the Board and the applicant shall be obligated to pay for the cost of such publication. Said notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision. A copy of the final decision shall be sent to the Scotch Plains-Fanwood Board of Education.

§ 184-34 Record of hearings.

The 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/her expense at the actual cost of preparing the transcript or duplicate recording. Transcript shall be certified in writing by the transcriber to be accurate.