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