A.
Site plan approval, when required. Prior to the issuance of a building permit, demolition permit, zoning approval or certificate of occupancy for any development, a final site plan application shall be submitted to and approved by resolution of the Board in accordance with the requirements of this article, and all conditions precedent to said approval, including but not limited to the completion of required infrastructure improvements as set forth in § 184-70 and/or the posting of performance guarantees for same, shall be complied with. Furthermore, the Board may require, as a condition of any approval, the withholding of permits and approvals pending the satisfactory completion of required improvements as set forth in § 184-70B and the completion of removals or demolitions. Notwithstanding the above, the following developments shall be exempt from the requirement of site plan review and approval:
(1)
Individual lot applications for detached one-family
dwelling unit buildings;
(2)
Subdivision applications for detached one-family dwelling
unit buildings; provided that the Board may review site-related issues
to determine that all of the lots proposed by the development plat
are adaptable for their intended purposes and without danger to the
general welfare;
(3)
A proposed alteration that is not a modification of the utilization of a building, structure or property as defined in § 184-8 and/or a change to the exterior dimensions of any existing building(s) or structure(s); provided that such determinations shall be made by the Zoning Official.
(4)
Site improvements or activities limited to the following,
provided that if such structures or activities are proposed in connection
with an application that otherwise would require site plan approval,
they shall be reviewed as part of the overall site plan application:
(a)
Minor maintenance and repair of existing structures,
as determined by the Zoning Official;
(b)
Wall signs and temporary signs;
(c)
Fences, except for fences greater than four
feet high in the front yard or greater than six feet high in the side
or rear yard; and
(d)
Freestanding walls and retaining walls, but
not including any such wall which is also a wall of a building; and
(5)
Development otherwise exempt from the requirement
of site plan approval by law.
(6)
A minor site plan which conforms with Subsection A(6) of the definition of "minor site plan" in § 184-8 and there is only a change of tenancy and no change to the exterior of the structure. In the event the foregoing conditions exist, a minor site plan waiver form will be signed by the Mayor, Planning Board Chairman and Zoning Officer.
[Amended 6-14-2001 by Ord. No. 01-10R]
B.
Subdivision approval, when required. Prior to the
filing of any plat, deed, map or other recorded instrument for the
subdivision of land with the county recording officer, a final subdivision
application shall be submitted to and approved by resolution of the
Board in accordance with the requirements of this article.
Applications for site plan and/or subdivision approval shall be classified as one or more of the following, as defined by this chapter in Article II:
Applications for site plan and/or subdivision
approval shall be filed in accordance with the following procedures:
A.
An application for site plan or subdivision approval
shall be filed with the Secretary of the Board. Required forms including
a completion checklist shall be available in the office of the Secretary
for the Board, and shall be provided to the applicant prior to formal
submission of an application.
B.
Applications must be accompanied by the required drawings,
documents, fees and other data as required by the completeness checklist
referred to in this article. The applicant may produce other documents,
records, or testimony at the hearing to substantiate, clarify or supplement
the previously filed maps and documents.
Upon the filing of an application, it shall be reviewed to determine compliance with the submission requirements of Articles II and IX. The following procedure shall apply:
A.
An application for development shall be complete for
purposes of commencing the applicable time period for action by the
Board when so certified by the Board or its authorized committee or
designee.
B.
The applicant shall be notified in writing whether
the application has been determined complete or incomplete by the
Board or its authorized committee or designee within 45 days of the
date of submission of an application.
C.
In the event that the agency, committee or designee
does not certify the application to be complete or incomplete within
45 days of the date of its submission, the application shall be deemed
complete upon the expiration of said forty-five-day period.
D.
The applicant may request that one or more of the submission requirements in Article IX be waived. A written request, explaining the basis for such request(s) must be submitted for such waiver requests in order to be considered. The Board or its authorized committee shall grant or deny the waiver request within 45 days of receipt of the written request. The following provisions shall apply to the grant of such waivers:
(1)
Waivers may be granted from submission requirements
for plan information or supplemental documentation that may be irrelevant
or excessive in the case of a particular application and which are
not necessary to determine the substantive merits of an application.
(2)
No waiver shall be granted from the requirement to
pay all applicable fees, taxes or assessments, nor from any other
procedural requirement established by any other law.
E.
Nothing herein shall be construed as diminishing the
applicant's obligation to prove in the application process that he
or she is entitled to approval of the application. The Board may subsequently
require correction of any information found to be in error and submission
of additional information not specified in this chapter or any revisions
in the accompanying documents, as well as the submission of any information
previously waived, as are reasonably necessary to make any informed
decision as to whether the requirements necessary for approval of
the application 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 Board.
The following general review procedures shall
apply, unless the provisions for specific types of applications indicate
a contrary procedure:
B.
After an application has been determined to be complete,
the application will be scheduled for public hearing. The Secretary
shall refer the application to the following persons or agencies for
report and recommendation to the Board:
(1)
Any consultants which have been directed by the Board
to review and comment on the application. The consultant shall provide
a report and/or testify, at the discretion of the Board, prior to
the Board's decision; provided that this shall not extend the time
period within which the Board shall be required to act;
(2)
The Police Department, Fire Department, Department
of Public Works, Fanwood Health Department, Shade Tree Commission,
Environmental Commission, Rescue Squad, Scotch Plains-Fanwood Board
of Education, and the Historic Preservation Commission.
(3)
Any other Borough, county, state and federal officials
and agencies having appropriate jurisdiction and as directed by the
Board. Such referral to other governmental officials or agencies shall
not relieve the applicant of the responsibility of applying independently
to and receiving approval from such agencies as required by law.
C.
The Board shall grant or deny an application within
the following time periods, or within such further time as may be
consented to by the applicant. The time period required below for
action shall begin on the date that an application is determined to
be complete.
(1)
Minor site plan: 45 days.
(2)
Preliminary major site plan, 10 acres of land or less
and 10 or fewer dwelling units: 45 days.
(3)
Preliminary major site plan, more than 10 acres of
land or more than 10 dwelling units: 95 days.
(4)
Final site plan: 45 days.
(5)
Minor subdivision: 45 days.
(6)
Preliminary major subdivision, 10 or fewer lots: 45
days.
(7)
Preliminary major subdivision, more than 10 lots:
95 days.
(8)
Final major subdivision: 45 days.
(9)
Conditional use site plan: 95 days.
(10)
Any application involving a variance: 120 days.
(11)
Simultaneous or consecutive applications: Whenever
an applicant seeks simultaneous approval of a subdivision, site plan,
conditional use, variance request and/or direction for issuance of
a permit, the longest time period for action by the Board, whether
it be for subdivision, site plan, conditional use, variance or direction
for issuance of a permit, shall apply to the simultaneous application.
In the event that the applicant elects to submit separate consecutive
applications, the time period for action provided above shall apply
to each individual application.
D.
If the Board requires any substantial amendments in
the layout of improvements proposed by the developer that have been
the subject of a hearing, an amended application for development shall
be submitted and proceeded upon, as in the case of the original application
for development.
E.
If the proposed development complies with this chapter
and the Municipal Land Use Law, the Board shall grant site plan and/or
subdivision approval.
At the request of the developer, the Board shall
grant an informal review of a concept plan for a development for which
the developer intends to prepare and submit an application for development.
Submission of a concept plan is optional with the developer. Informal
review of a concept plan is intended to enable the Board and the developer
to discuss and evaluate principles and potential problems involved
before the applicant has gone to the expense of completing detailed
engineering drawings as required for formal site plan review and approval.
The procedures for filing, determination of completeness and review
shall be as provided by this article. The developer shall not be bound
by any concept plan for which review is requested, and the Board shall
not be bound by any such review.
In addition to the procedures for filing, completeness
determination and review provided by this article, the following provisions
shall apply to minor site plans:
A.
If an application for minor site plan approval is
classified as other than minor site plan, the applicant will be so
notified. No further action by the Board will be required, and the
applicant will be required to follow the procedures for filing an
application for preliminary and final minor site plan approval.
B.
A minor site plan, with or without variances, shall be referred to the Site Plan Committee for review and recommendations then it shall proceed for consideration before the Board for a hearing. In the event variances are required, notices shall be given to all property owners within 200 feet in all directions of the property which is the subject of such hearing, pursuant to the notice requirements referenced in § 184-25.
D.
If the application is approved, the approved plan shall be signed by the Chairman and Secretary of the Board; provided that the signatures of the Chairman and Secretary shall not be affixed until the developer has posted any guarantees that may be required pursuant to § 184-69.
E.
Prior to the Board returning the signed minor site
plan to the applicant, the applicant shall submit three copies of
the approved plan to the Secretary.
F.
The zoning requirements and general terms and conditions,
whether conditional or otherwise, upon which minor site plan approval
was granted, shall not be changed for a period of two years after
the date of minor site plan approval. The Board shall grant an extension
of this period for a period determined by the Board but not exceeding
one year from what would otherwise be the expiration date, if the
developer proves to the reasonable satisfaction of the Board that
the developer was barred or prevented, directly or indirectly, from
proceeding with the development because of delays in obtaining legally
required approvals from other governmental entities and that the developer
applied promptly for and diligently pursued the approvals. The developer
shall apply for this extension before what would otherwise be the
expiration date, or the 91st day after the date on which the developer
receives the last of the legally required approvals from the other
governmental entities and that the developer applied promptly for
and diligently pursued the approvals. The developer shall apply for
this extension before what would otherwise be the expiration date,
or the 91st day after the date on which the developer receives the
last of the legally required approvals from the governmental entities,
whichever occurs later.
G.
Minor site plan approval shall expire three years
from the date of the resolution of approval if the building permit
or other permit necessary to complete the site development which was
the subject of the approval has not been obtained.
In addition to the procedures for filing, completeness
determination and review provided by this article, the following provisions
shall apply to minor subdivisions:
A.
If an application for minor subdivision approval is
classified as other than a minor subdivision, the applicant will be
so notified. No further action by the Board will be required, and
the applicant will be required to follow the procedures contained
herein for filing an application for preliminary and final major subdivision
approval.
B.
In reviewing a minor subdivision application, the
Board may accept a plat not in conformity with the Map Filing Law,
provided that if the developer chooses to file the minor subdivision
as provided herein by plat rather than deed, such plat shall conform
with the Map Filing Law.
C.
A minor subdivision shall be referred to the Subdivision Committee for review and recommendations; then it shall proceed for consideration before the Board for a hearing. In the event variances are required, notices shall be given to all property owners within 200 feet in all directions of the property which is the subject of such hearing, pursuant to the notice requirements referenced in § 184-25.
E.
If the application is approved, and if all conditions have been fulfilled, the applicant shall, within 190 days of the fulfillment of all such conditions, submit his or her deed or plan for signature by the Chairman and Secretary of the Board; provided that the signatures of the Chairman and Secretary shall not be affixed until the developer has posted any guarantees that may be required pursuant to § 184-69. If the deed or plat is not submitted within said one-hundred-ninety-day period, any such approval shall lapse and be of no force and effect; provided, however, that the applicant may, for good cause shown, obtain an extension either before or after the lapse of said one-hundred-ninety-day period within the reasonable exercise of the Board's judgment.
F.
Prior to the Board returning the signed minor subdivision
plat or deed to the applicant, the applicant shall submit three copies
of the approved plat or deed to the Secretary.
G.
Except as provided otherwise below, approval of a minor subdivision shall expire 190 days from the date on which the resolution of Borough approval is adopted unless within such period a plat in conformity with such approval and the provisions of the Map Filing Law, or a deed clearly describing the approved minor subdivision is filed by the developer with the County Clerk, the Borough Engineer and the Borough Tax Assessor. Any such plat or deed accepted for such filing shall have been signed by the Chairman and Secretary of the Board. No subdivision plat will be accepted for filing by the County Clerk until the plat has been approved by the Board as indicated on the instrument by the signature of the Chairman and Secretary of the Board or a certificate has been issued pursuant to § 184-74.
H.
The Board may extend the one-hundred-ninety-day period
for filing a minor subdivision plat or deed if the developer proves
to the reasonable satisfaction of the Board that the developer was
barred or prevented, directly or indirectly, from filing because of
delays in obtaining legally required approvals from other governmental
or quasi-governmental entities, and that the developer applied promptly
for and diligently pursued the required approvals. The length of the
extension shall be equal to the period of delay caused by the wait
for the required approvals, as determined by the Board. The developer
may apply for the extension either before or after what would otherwise
be the expiration date.
I.
The zoning requirements and general terms and conditions,
whether conditional or otherwise, upon which minor subdivision approval
was granted, shall not be changed for a period of two years after
the date on which the resolution of minor subdivision approval is
adopted, provided that the approved minor subdivision shall have been
duly recorded as provided in this section.
In addition to the procedures for filing, completeness
determination and review provided by this article, the following provisions
shall apply to preliminary major site plans and preliminary major
subdivisions:
A.
If the application is approved, the site plan or plat,
as applicable, shall be signed by the Chairman and Secretary of the
Board.
B.
Prior to the Board returning the approved preliminary
subdivision plat or site plan drawings to the applicant, the applicant
shall submit three copies of the approved site plan or plat to the
Secretary.
C.
Preliminary approval of a major site plan or preliminary
major subdivision shall, except as provided otherwise below, confer
upon the applicant the following right for a three-year period from
the date on which the resolution of preliminary approval is adopted:
(1)
That the general terms and conditions on which preliminary
approval was granted shall not be changed, including but not limited
to use requirements; layout and design standards for streets, curbs
and sidewalks; lot size; yard dimensions and off-tract improvements;
and, in the case of a site plan, any on-tract improvements required
to be installed, except that nothing herein shall be construed to
prevent the Borough from modifying by ordinance such general terms
and conditions of preliminary approval as relate to public health
and safety;
(2)
That the applicant may submit for final approval on
or before the expiration date of preliminary approval the whole or
a section or sections of the preliminary major site plan or preliminary
major subdivision, as the case may be; and
(3)
That the applicant may apply for and the Board may
grant extensions of such preliminary approval for additional periods
of at least one year, but not to exceed a total extension of two years,
provided that if the design standards have been revised by ordinance,
such revised standards may govern.
D.
Whenever the Board grants an extension of preliminary
major site plan or preliminary major subdivision approval as indicated
above and the preliminary approval has expired before the date on
which the extension is granted, the extension shall begin on what
would otherwise be the expiration date. The developer may apply for
the extension either before or after what would otherwise be the expiration
date.
In addition to the procedures for filing, completeness
determination and review provided by this article, the following provisions
shall apply to final major site plans and final major subdivisions:
A.
The Board shall grant final approval if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by this chapter for final approval, the conditions of preliminary approval and, in the case of a major subdivision, the standards prescribed by the Map Filing Law. No final approval shall be granted unless a required infrastructure improvements pursuant to § 184-70 have been satisfactorily completed, or unless performance guarantees for same have been posted and accepted pursuant to § 184-69. Furthermore, the Board may require the withholding of permits and approvals pending the completion of required infrastructure and site improvements. No certificate of occupancy or zoning approval shall be issued prior to the satisfactory completion of all improvements, except as may be provided otherwise by § 184-70B.
B.
If the application is approved, and if all conditions have been fulfilled, the applicant shall, within 190 days of the fulfillment of all such conditions, submit his or her plat or plan for signature by the Chairman and Secretary of the Board; provided that the signatures of the Chairman and Secretary shall not be affixed until the developer has posted any guarantees that may be required pursuant to § 184-69. If the plat or plan is not submitted within said one-hundred-ninety-day period, any such approval shall lapse and be of no force and effect; provided, however, that the applicant may, for good cause shown, obtain an extension either before or after the lapse of said one-hundred-ninety-day period within the reasonable exercise of the Board's judgment.
C.
Prior to the signing and return of a final major subdivision
plat or final major site plan, the applicant shall submit three copies
of the approved plat to the Secretary. In the case of a final major
subdivision, the applicant shall also submit a translucent copy of
the drawing suitable for making prints.
D.
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 Union
County Clerk. The Board may for good cause shown extend the period
of recording for an additional period not to exceed 190 days from
the date of signing of the plat.
E.
The Board may extend the ninety-five-day or one-hundred-ninety-day
filing period if the developer proves to the reasonable satisfaction
of the Board that the developer was barred or prevented, directly
or indirectly, from filing because of delays in obtaining legally
required approvals from other governmental or quasi-governmental entities
and that the developer applied promptly for and diligently pursued
the required approvals. The length of the extension shall be equal
to the period of delay caused by the wait for the required approvals,
as determined by the Board. The developer may apply for a filing extension
either before or after the original expiration date.
F.
No subdivision plat will be accepted for filing by the Union County Clerk until the plat has been approved by the Board as indicated on the instrument by the signature of the Chairman and Secretary of the Board or a certificate has been issued pursuant to § 184-74. The signatures of the Chairman and Secretary of the Board shall not be affixed until the developer has posted the guarantees required pursuant to § 184-69.
G.
The zoning requirements applicable to the preliminary
approval first granted and all other rights conferred upon the developer
by preliminary approval, whether conditionally or otherwise, shall
not be changed for a period of two years after the date on which the
resolution of final approval is adopted, provided that in the case
of a major subdivision the rights conferred herein shall expire if
the plat has not been duly recorded within the time period provided
above.
H.
Notwithstanding any other provisions of this chapter,
the granting of final approval to the development or section of the
development terminates the time period of protection for the preliminary
approval granted to the same development or section of the development.
I.
If the developer has followed the standards prescribed
for final approval, and, in the case of a subdivision, has duly recorded
the plat as required above, the Board may extend such period of protection
for extensions of one year, but not to exceed three extensions.
J.
The developer may apply for an extension either before
or after what would otherwise be the expiration date. Whenever the
Board grants an extension of final approval pursuant to this section
and the final approval has expired before the date on which the extension
is granted, the extension shall begin on what would otherwise be the
expiration date.
K.
Site plan approval shall expire three years from the
date of the resolution of approval, or after any extension which may
have been granted pursuant to this section, whichever is later, if
the building permit or other permit necessary to complete the site
development which was the subject of the approval has not been obtained.
The Board, in granting any approval, may require
reasonable conditions designed to further the intent and purpose of
this chapter and the Municipal Land Use Law. The following provisions
shall apply to conditional approvals:
A.
Time for compliance with conditions. Whenever any application for development is approved subject to specified conditions, said conditions shall be fulfilled within 190 days of the date on which the resolution of approval was adopted. Exempt from this requirement are those conditions pertaining to other governmental approvals as indicated in Subsections D, E and F below. Notwithstanding the above, the Board may, in appropriate circumstances, specify a longer period of time within which any specific condition must be fulfilled. In addition, the applicant may, for good cause shown, apply for, and the Board may grant, extensions of time within which such conditions must be fulfilled as the Board may deem appropriate under the circumstances. Applications for such extension must be made prior to the expiration of the period within which conditions were previously required to be fulfilled.
B.
Procedure for demonstrating compliance. All conditions
of approval shall be complied with in the following manner:
(1)
Proof that applications have been filed with all other
agencies having jurisdiction over any aspect of the application for
development shall forthwith be filed with the Board.
(2)
The fulfillment of all other conditions shall forthwith
be reported in writing to the Board, which may cause such reports
to be verified in an appropriate manner.
C.
Effect of failure to comply. Only upon fulfillment
of all conditions precedent of preliminary approval shall any site
clearing, grading, construction of required on-tract or off-tract
improvements, or other development be permitted. Only upon fulfillment
of all conditions precedent of final approval shall any subdivision
map or site plan be signed or any required building permit, occupancy
permit, zoning approval or other required approval be issued. Failure
to comply with any and all specified conditions of approval shall
have the following effects:
(1)
Conditions precedent. In the case of specified conditions
intended to be fulfilled before the approval becomes effective, failure
to fulfill any such condition within the required time period shall
cause said conditional approval to lapse and become null and void.
(2)
Conditions subsequent. In the case of specified 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 the required
time period shall be grounds for the issuance of a stop work order
by the enforcing official and the withholding of any certificate of
occupancy or any other approval until such conditions are fulfilled.
D.
County Planning Board approval. Whenever review or
approval of an application by the County Planning Board is required
pursuant to Section 5 of the County Planning Act, in the case of a
subdivision,[1] or Section 8 of the County Planning Act, in the case of
a site plan,[2] the Board shall condition any approval that it grants
upon timely receipt of a favorable report on the application by the
County Planning Board or approval by the County Planning Board by
its failure to report thereon within the required time period.
E.
Other governmental approvals. In the event that development
proposed by an application requires an approval by a governmental
agency other than the Board or the County Planning Board, the Board
shall, in appropriate instances, condition its approval upon the subsequent
approval of such governmental agency; provided that the Board shall
make a decision on any application within the time periods provided
in this chapter or within an extension of such period as has been
agreed to by the applicant unless the Board is prevented or relieved
from so acting by the operation of law.
F.
Barrier to development due to legal action. In the
event that a developer submits an application for development that
is barred or prevented, directly or indirectly, by a legal action
instituted by any State agency, political subdivision or other party
to protect the public health and welfare or by a directive or order
issued by any state agency, political subdivision or court of competent
jurisdiction to protect the public health and welfare, the Board shall
process such application for development in accordance with the Municipal
Land Use Law and this chapter, and if such application for development
complies with this chapter, the Board shall approve such application
conditioned on removal of such legal barrier to development, unless
same is stayed by judicial or administrative order.
Failure of the Board to act within the periods
prescribed herein shall constitute an approval of the application,
and a certificate of the Board Secretary as to the failure of the
Board to act shall be issued on the request of the applicant, and
it shall be sufficient in lieu of the written endorsement or other
evidence of approval, as required by the Municipal Land Use Law, and
shall be so accepted by the Union County Clerk for purposes of filing
subdivision plats. The following provisions shall apply whenever an
applicant wishes to claim approval of his or her application for development
by reason of the failure of the Board to grant or deny approval within
the time period provided herein:
A.
The applicant shall provide notice of the default approval to the Board 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 § 184-25.
B.
The applicant shall arrange publication of a notice
of the default approval in the official newspaper of the Borough,
if there is one, or in a newspaper of general circulation in the Borough.
The following shall apply to requests for extension
of any approval from the Board due to delays in obtaining approvals
from other government agencies:
A.
The Board shall grant an extension of any site plan,
subdivision or variance approval for a period determined by the Board,
but not exceeding one year from what would otherwise be the expiration
date, if the developer proves to the reasonable satisfaction of the
Board that the developer was barred or prevented, directly or indirectly,
from proceeding with the development because of delays in obtaining
legally required approvals from other governmental entities and that
the developer applied promptly for and diligently pursued the approvals.
B.
A developer shall apply for this extension before
what would otherwise be the expiration, or the 91st day after the
date on which the developer receives the last of the legally required
approvals from the other governmental entities, whichever occurs later.
C.
An extension granted pursuant to this section shall
not preclude the Board from granting any other extensions permitted
herein or by any other law.
In the event that, during the period of approval
heretofore or hereafter granted to an applicant for development, the
developer is barred or prevented, directly or indirectly, from proceeding
with the development otherwise permitted under such approval by a
legal action instituted by any state agency, political subdivision
or other party to protect the public health and welfare or by a directive
or order issued by any state agency, political subdivision or court
of competent jurisdiction to protect the public health and welfare
and the developer is ready, willing and able to proceed with said
development, the running of the period of approval under this chapter
shall be suspended for the period of time said legal action is pending
or such directive order is in effect.
A developer's agreement shall be required for all applications involving infrastructure as set forth in § 184-70, off-tract improvements as set forth in § 184-71, or site grading in accordance with the following provisions:
A.
Prior to any construction and coincident with the
furnishing of the performance guarantee by the developer, the developer
shall enter into a developer's agreement with the Borough incorporating
all of the terms and conditions of approval as required by the Board.
B.
At the discretion of the Borough, the developer may
be required to provide a restoration guarantee as part of the agreement
that can be used by the Borough to restore the property to a safe
condition in the event that the developer abandons the development
project. The intent of such guarantee is to ensure that the property
in its unfinished development state does not adversely affect the
public safety or adversely impact the environment.
C.
No cutting of trees or vegetation, with the exception of routine property maintenance as prescribed by Chapter 224, Property Maintenance, and no excavation, earth moving or installation of infrastructure shall be permitted until said developer's agreement is executed between the Borough and the developer.
D.
No Borough official shall sign the plan of an approved
subdivision, site plan or variance plan until any required developer's
agreement has been executed, the form and amount of any performance
guarantee has been approved and received, the required deposit for
inspection fees has been received, and until all conditions precedent
to approval have been satisfied, and any other special terms and conditions
have been met.
A.
Completion of infrastructure improvements or performance guarantee required prior to final approval. All infrastructure improvements required in Subsection C below, except for the top course of street pavement and street trees, shall be installed and any required off-tract improvements shall be installed or a pro rata share of such off-tract improvements paid prior to final approval of any subdivision, site plan or variance; provided, however, that the developer may provide, and the Borough shall accept a performance guarantee in accordance with §§ 184-69 for the required infrastructure improvements set forth in Subsection C below in lieu of the installation of said improvements prior to final approval.
B.
Completion of improvements required prior to issuance of permits. The Board, in granting final subdivision, final site plan or variance approval, may, in appropriate circumstances, condition the issuance of building permits, demolition permits, certificates of occupancy or zoning approvals, as applicable, upon the timely installation of required infrastructure improvements set forth in Subsection C below, notwithstanding any performance guarantee which may have been provided, and upon the timely installation of required site improvements set forth in Subsection D below. In no case, however, shall a certificate of occupancy or zoning approval be issued for any development prior to the satisfactory completion of all required improvements set forth in Subsections C and D below; provided, however, that the Board may, in appropriate circumstances, authorize the issuance of a certificate of occupancy or zoning approval prior to the completion of the top course of street pavement, street trees and on-site landscaping if a performance guarantee for same is provided in accordance with § 184-69.
C.
Required infrastructure improvements. The following improvements shall be required for all major subdivisions and major site plans; provided that the Board may require any or all of the following for minor subdivisions, minor site plans and variances if, in the opinion of the Board, the improvements are necessary to provide adequate infrastructure to service the development. All of the following improvements shall be designed in accordance with the provisions in Article XI of this chapter:
(1)
Street pavement and street curbs;
(2)
Sidewalks on both sides of all new through streets
and along any side of existing through streets upon which the subject
property has frontage;
(3)
Driveway aprons;
(4)
Streetlighting;
(5)
Street signs, street traffic signs and striping;
(6)
Street trees;
(7)
Monuments, if required by the Map Filing Law;
(8)
Potable water facilities, and connections to same,
within the street right-of-way, public easements or other public areas;
(9)
Water facilities for fire-fighting purposes within
the street right-of-way, public easements or other public areas;
(10)
Sanitary sewer facilities, including but not
limited to pipes, inlets, head walls, detention and retention basins
or structures, and connections to same, all within the street right-of-way,
public easements or other public areas; including but not limited
to pipes, inlets, head walls, detention or retention basins or structures.
(11)
Storm drainage facilities, including but not
limited to pipes, inlets, head walls, detention and retention basins
or structures, and connections to same, all within the street right-of-way,
public easements or other public areas; and any on-site grading which
may be necessary for the proper functioning of the public system.
(12)
Electric, telephone, gas and cable television
service, as applicable, and connections to same, within the street
right-of-way, public easements or other public areas;
(13)
Any related improvements that may be necessary
to provide any of the improvements required above;
(15)
Any improvements required by the RSIS.
As a condition of preliminary approval and prior
to any construction or the filing of an application for final approval
of a subdivision or site plan, the applicant shall have made cash
payments or other forms of payment acceptable to the Borough, and/or
installed with the consent of the Borough, for any required off-tract
improvements. The following provisions shall apply:
A.
Determination of required improvements. The Board
shall determine the nature of off-tract improvements to be required.
Such determination shall not be inconsistent with the Borough Master
Plan circulation and utility elements, and may include street and
related improvements, water, sewer and drainage facilities, and easements
thereof.
B.
Determination of total cost of improvements. The cost
of installation of the required off-tract improvements shall be determined
by the Board with advice of appropriate Borough agencies and officials.
C.
General criteria in determining proportion of costs
to be paid by applicant. The proportion of the total cost to be paid
by the applicant for off-tract improvements shall be determined by
the Board, with the assistance of the appropriate Borough agencies,
based on the following criteria:
(1)
The total cost of the off-tract improvements;
(2)
The increase in market values of the property affected
and any other benefits conferred;
(3)
The needs created by the application;
(4)
Population and land use projections for the general
area of the applicant's property and other areas to be served by the
off-tract improvements;
(5)
The estimated time of construction of the off-tract
improvements;
(6)
The condition and periods of usefulness of the off-tract
improvements, which periods may be based upon the criteria of N.J.S.A.
40A:2-22; and,
(7)
Any other reasonable criteria the Board feels is necessary
to protect the public health, safety and welfare.
D.
Criteria in determining proportion of cost to be paid by applicant for specific improvements. In addition to and notwithstanding the provisions of Subsection C above, the following criteria may be considered in determining the proportion of the total cost to be paid by the applicant for the following specific off-tract improvements:
(1)
Proportion of costs for street pavement, curbs, sidewalks,
shade trees, streetlights, street signs, traffic lights and related
improvements and easements therefor may also be based upon the anticipated
increase of traffic generated by the development. In determining such
traffic increase, the Board may consider traffic counts, existing
and projected traffic patterns, quality of roads and sidewalks in
the area and other factors related to the need created by the development
and the anticipated benefit thereto.
(2)
Proportion of costs for drainage facilities may also
be based upon the drainage conditions created by or affected by a
particular development, considering:
(3)
Proportion of costs for water supply and distribution
facilities may also be based upon the additional facilities necessitated
by the total anticipated water use requirements of the development
and other properties in the general area benefiting therefrom.
(4)
Proportion of costs for sanitary sewer facilities
may also be based upon the proportion that the total anticipated volume
of sewage effluent of the development and other properties connected
to the new facility bears to the existing capacity of existing sewerage
facilities. The calculation shall include the lines and other appurtenances
leading to and servicing the development property. Consideration may
also be given to the types of effluent and particular problems requiring
special equipment or added costs for treatment. In the event that
the applicant's property shall be permitted to be connected to existing
sewer facilities, the applicant shall pay a charge or be assessed
in accordance with law.
E.
Manner of implementation. After the estimated total
cost of construction and the application's proportion of the total
cost has been determined, the Governing Body shall determine whether
the off-tract improvement is to be implemented by the Borough as a
general or local improvement, or by the applicant under a formula
providing for partial reimbursement by the Borough for benefits to
properties other than the subdivision or site plan.
F.
Deposit for improvements. When the manner of implementation
has been determined by the Governing Body, the applicant may be required
to provide a cash deposit or other deposit acceptable to the Borough,
in accordance with the following:
(1)
If the improvement is to be constructed by the Borough
as a general improvement, the applicant shall be required to deposit
an amount equal to the difference between the total cost of the improvement
and the estimated amount, if less than the total cost, that all properties
which are to be serviced by the improvement, including the subject
property, will be specifically benefited by the improvement.
(2)
If the improvement is to be constructed by the Borough as a local improvement, the applicant shall be required to deposit an amount equal to the amount specified in Subsection F(1), plus the estimated amount that the subject property will be specifically benefited by the improvement.
(3)
If the improvement is to be constructed by the applicant,
the applicant shall be required to deposit an amount equal to the
estimated cost of the improvement, less an offset for benefits to
properties other than the subject property.
G.
Payment for applicant's share of the cost of improvement. The applicant's proportion of the total cost of off-tract improvements shall be paid by the applicant to the Borough Treasurer, who shall provide a suitable depository therefore, and such funds shall be used only for the off-tract improvements for which they are deposited, or for other improvements serving the same purpose. In the event that the amount of the deposit pursuant to Subsection F above is less than the applicant's proportion of the total cost determined pursuant to Subsections C and D above, then the applicant shall be required to pay said proportion. In the event that the amount of the deposit pursuant to Subsection F above is more than the applicant's proportion of the total cost determined pursuant to Subsections C and D above, then the Borough shall reimburse the applicant, or his or her successors or assigns, for the difference between the deposit and the applicant's proportion.
H.
Refund of payments for failure of Borough to make
improvements. If after a period of 10 years from the date of payment
by an applicant for off-tract improvements to be constructed by the
Borough, construction of such off-tract improvements has not been
initiated, the Borough shall refund any and all deposits made by the
applicant for such improvements, together with the accumulated interest
or other income earned on the deposit, if any.
I.
Dispute of amount of applicant's contribution. If
the applicant and the Board cannot agree on the total cost or the
applicant's proportion of the total cost of the off-tract improvement,
or on the determination made by the officer or Board charged with
the duty of making assessments as to special benefits, and if the
off-tract improvement is to be constructed as a local improvement,
no approval shall be granted for the application. Where a developer
pays the amount determined as his or her proportion of the total cost
of the improvement under protest, he or she shall institute legal
action within one year of such payment in order to preserve the right
to a judicial determination as to the fairness and reasonableness
of such amount.
J.
Assessments of properties. Upon receipt from the applicant of his or her proportion of the total cost of the off-tract improvement, the Borough may adopt a local improvement assessment ordinance for the purpose of construction of the off-tract improvements based upon the actual cost thereof. Any portion of the cost of the improvements not defrayed by a deposit by the applicant may be assessed by the Borough against any property owners who benefit from the improvement. Any assessments made against the applicant or his or her successors or assigns for benefits conferred shall be first offset by a credit for the payment made by the applicant pursuant to Subsection G above. The applicant or his or her successors or assigns shall not be liable for any part of any assessment for such improvements unless the assessment exceeds the credit for payment previously made, and then only to the extent of the deficiency.
K.
Credit for work performed. In the event that the applicant, with the Borough's consent, decides to install and construct the off-tract improvement, or any portion thereof, the certified cost shall be treated as a credit against any future assessment for that particular off-tract improvement or portion thereof constructed by the Borough in the same manner as if the applicant had made a payment pursuant to Subsection G above.
L.
Installation of improvements by applicant. At the
option of the Borough, and with the consent of the applicant, the
Borough may enter into a contract with the applicant providing for
the construction of off-tract improvements by the applicant upon contribution
by the Borough of the remaining unallocated portion of the cost of
the off-tract improvement. In the event that the Borough so elects
to contribute to the cost and expense of installation of the off-site
improvements by the applicant, the portion contributed by the Borough
shall be subject to possible certification and assessment as a local
improvement against benefiting property owners in the manner provided
by law, if applicable.
M.
Compliance with design criteria. Should the applicant
and the Borough enter into a contract for the construction and erection
of the off-tract improvement to be done by the applicant, he or she
shall observe all requirements and principles of this chapter in the
design of such improvements.
All improvements required by the Board, except
electric, telephone, cable television, streetlighting, gas and streets
not under the jurisdiction of the Borough shall be installed under
the supervision and inspection of the Borough Engineer. Other improvements
shall be installed under the supervision and inspection of the authority
having jurisdiction over such improvements. No construction work covering
the required improvements shall be commenced without the developer
first notifying the Borough Engineer that said construction work is
about to take place. Such notice shall be given, in writing, to the
Borough Engineer at his or her office at least seven days before the
commencement of such work. No required underground improvements shall
be covered until inspected and approved by the Borough Engineer.
A.
If, before final subdivision approval has been granted,
any person transfers or sells or agrees to transfer or sell, except
pursuant to an agreement expressly conditioned on final subdivision
approval, as owner or agent, any land which forms a part of a subdivision
for which Borough approval is required by this chapter, such person
shall be subject to a penalty not to exceed $1,000, and each lot disposition
so made may be deemed a separate violation.
B.
In addition to the foregoing, the Borough may institute and maintain a civil action for injunctive relief and to set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of compliance has not been issued in accordance with §§ 184-74, 184-84 and/or 184-86. In any such action, the transferee, purchaser or grantee shall be entitled to a lien upon the portion of the land from which the subdivision was made that remains in the possession of the developer or his or her assigns or successors, to secure the return of any deposits made or purchase price paid, and also, a reasonable search fee, survey expense and title closing expense, if any. Any such action must be brought within two years of the date of the recording of the instrument of transfer, sale or conveyance of said land or within six years, if unrecorded.
The prospective purchaser, prospective mortgagee,
or any other person interested in any land which forms part of a subdivision,
or which formed part of such a subdivision subsequent to August 1,
1973, may apply in writing to the Board Secretary for the issuance
of a certificate certifying whether or not such subdivision has been
approved by the Board. The following provisions shall apply to the
issuance of said certificates:
A.
Such application shall contain a diagram showing the
location and dimension of the land to be covered by the certificate
and the name of the owner thereof.
B.
The Board Secretary shall make and issue such certificate
within 15 days after the receipt of such written application and the
fees therefor.
C.
Each such certificate shall be designated a "certificate
as to approval of subdivision of land", and shall certify:
(1)
Whether there exists in the Borough a duly established
Board and whether there is a chapter controlling subdivision of land
adopted under the authority of the Municipal Land Use Law;
(2)
Whether the subdivision, as it relates to the land
shown in said application, has been approved by the Board and, if
so, the date of such approval and any extensions and terms thereof,
showing that subdivision of which the lands are a part in a validly
existing subdivision; and,
(3)
Whether such subdivision, if the same has not been
approved, is statutorily exempt from the requirement of approval as
provided in the Municipal Land Use Law at N.J.S.A. 40:55D-7, definition
of "subdivision."
D.
The Board Secretary shall charge a fee for such certificate as provided in Article VI of this chapter, which fee shall be paid to the Board Secretary.
E.
The Board Secretary shall keep a duplicate copy of
each certificate, consecutively numbered, including a statement of
the fee charged, in a binder as a permanent record of his or her office.
F.
Any person who shall acquire for a valuable consideration an interest in the lands covered by any such certificate of approval of a subdivision in reliance upon the information contained therein shall hold such interest free of any right, remedy or action which could be prosecuted or maintained by the Borough pursuant to the provisions of § 184-73.
G.
If the Board Secretary fails to issue the same within 15 days after receipt of an application and fees thereof, any person acquiring an interest in the lands described in such application shall hold such interest free of any right, remedy or action which could be prosecuted or maintained by the Borough pursuant to § 184-73.
H.
Any such application addressed to the Borough Clerk
shall be deemed to be addressed to the proper designated officer and
the Borough shall be bound thereby to the same extent as though the
same was addressed to the designated official.
The Board, when acting upon applications for minor site plan, minor subdivision, preliminary major site plan or preliminary major site plan approval, shall have the power to grant such exceptions from the requirements in this chapter for site plan or subdivision approval as may be reasonable and within the general purpose and intent for the provisions for site plan and subdivision review and approval, if the literal enforcement of one or more provisions of this chapter regulating site plan and subdivision applications is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question. Notwithstanding the above, there shall be no deviation from the zoning regulations, Articles XII through XX of this chapter, authorized by this section. Furthermore, and not withstanding the above, requests for exceptions and waivers of the RSIS shall be subject to the procedures and limitations in said standards.
If the Borough Master Plan or Official Map provides
for the reservation of designated streets, public drainageways, flood
control basins, or public areas within the proposed development, the
Board may require that such streets, ways, basins or areas be shown
on the plat in locations and sizes suitable to their intended uses
before approving the subdivision or site plan.
It shall be a condition of any approval by the
Borough agency pursuant to this chapter that proof be submitted that
no taxes or assessments for local improvements are due or delinquent
on the property for which any approval is sought.
A corporation or partnership applying to the
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.
A.
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 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 10% ownership criterion established
herein, have been listed.
B.
The Board shall not approve the application of any
corporation or partnership which does not comply with this section.
C.
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 Borough 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]
[1]
Editor's Note: N.J.S.A. 2A:58-1 et seq. was
repealed by L. 1999, c. 274. See now N.J.S.A. 2A:58-10 et seq.
Any site plan or subdivision approved by the
Board pursuant to this article shall be binding upon the applicant
and his or her heirs, executors, successors or assigns. Any deviation
from an approved site plan or subdivision, or any failure to adhere
to the conditions of approval shall be deemed a violation of this
chapter and shall be subject to the enforcement and penalties prescribed
by this chapter.
