A.
Establishment.
(1)
The Planning Board presently in existence pursuant
to N.J.S.A. 40:55D-23 is hereby continued to consist of nine members
of the following four classes and four alternates. All members of
the Planning Board, except for the Class II members set forth below,
shall be municipal residents.
[Amended 1-20-2001 by Ord. No. 2-2001][1]
(a)
Class I: the Mayor, or the Mayor's designee
in the absence of the Mayor.
(b)
Class II: one of the officials of the Borough,
other than the Mayor or a member of the Borough Council, to be appointed
by the Mayor, provided that if there is an Environmental Commission,
the member of the Environmental Commission who is also a member of
the Planning Board as required by N.J.S.A. 40:56A-1 shall be deemed
to be the Class II Planning Board member if there is a member of the
Board of Education among the Class IV members or alternate members.
(c)
Class III: a member of the Borough Council to
be appointed by it.
(d)
Class IV: six other citizens of the Borough
to be appointed by the Mayor. The members of Class IV shall hold no
other municipal office, position or employment, except that one member
may be a member of the Historic Preservation Commission, if there
be an Historic Preservation Commission, and one may be a member of
either the Atlantic Highlands Board of Education or the Henry Hudson
Regional School Board of Education. A member of the Environmental
Commission who is also a member of the Planning Board as required
by N.J.S.A. 40:56A-1 shall be a Class IV Planning Board member unless
there be among the Class IV or alternate members of the Planning Board
a member of the Historic Preservation Commission and a member of the
Board of Education, in which case the member of the Environmental
Commission shall be deemed to be the Class II member of the Planning
Board. For the purpose of this section, membership on a municipal
board or commission whose function is advisory in nature, and the
establishment of which is discretionary and not required by statute,
shall not be considered the holding of municipal office.
(2)
Alternates. The Mayor may also appoint up to four
alternates who shall be qualified, designated, and for the terms as
specified in N.J.S.A 40:55D-23.1.
[Amended 1-20-2001 by Ord. No. 2-2001]
B.
Terms.
(1)
The term of the member composing Class I shall correspond
to his official tenure. If the member is the Mayor's designee in the
absence of the Mayor, the designee shall serve at the pleasure of
the Mayor during the Mayor's official tenure. The terms of the members
composing Class II and Class III shall be for one year or terminate
at the completion of their respective terms of office, whichever occurs
first, except for a Class II member who is also a member of the Environmental
Commission. The term of a Class II or a Class IV member who is also
a member of the Environmental Commission shall be for three years
or terminate at the completion of his term of office as a member of
the Environmental Commission, whichever comes first.[2]
(2)
The term of a Class IV member who is also a member
of the Board of Education shall terminate whenever he is no longer
a member of such other body or at the completion of his Class IV term,
whichever occurs first.
(3)
The terms of all Class IV members first appointed
pursuant to N.J.S.A. 40:55D-23 shall be so determined that to the
greatest practicable extent the expiration of such term shall be evenly
distributed over the first four years after their appointment as determined
by resolution of the Borough Council; provided, however, that no term
of any member shall exceed four years and further provided that nothing
herein shall affect the term of any present member of the Planning
Board, all of whom shall continue in office until the completion of
the term for which they were appointed. Thereafter, all Class IV members
shall be appointed for terms of four years, except as otherwise herein
provided. All terms shall run from January 1 of the year in which
the appointment was made.
(4)
In the event that a choice must be made as to which
alternate member is to vote, the lowest numbered alternate member(s)
shall vote.
[Amended 1-20-2001 by Ord. No. 2-2001]
C.
Conflicts. No member or alternate member of the Planning
Board shall be permitted to act on any matter in which he has, either
directly or indirectly, any personal or financial interest.
D.
Vacancies. If a vacancy of any class shall occur otherwise
than by expiration of term, it shall be filled by appointment, as
above provided, for the unexpired term only.
E.
Removal. Any member other than a Class I member, after
a public hearing if he requests one, may be removed by the Borough
Council for cause.
F.
Organization of Board. The Planning Board shall elect
a Chairman and Vice Chairman from the members of Class IV and select
a Secretary who may be either a member of the Planning Board or a
municipal employee designated by it.
G.
Planning Board Attorney. There is hereby created the
office of Planning Board Attorney. The Planning Board may annually
appoint, fix the compensation of or agree upon the rate of compensation
of the Planning Board Attorney who shall be an attorney other than
the Borough Attorney. The Board shall not expend an amount, exclusive
of gifts or grants, in excess of the amount appropriated by the Council
for its use.
H.
Expenses, experts and staff. The Borough Council shall
make provisions in its budget and appropriate funds for the expenses
of the Planning Board. The Planning Board may employ or contract for
the services of experts and other staff and services as it may deem
necessary. The Planning Board shall not, however, exceed, exclusive
gifts or grants, the amount appropriated by the Borough Council for
its use.
I.
Powers and duties. The Planning Board shall adopt
such rules and regulations as may be necessary to carry into effect
the provisions and purposes of this chapter. In the issuance of subpoenas,
administration of oaths and taking of testimony, the provisions of
the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1
et seq.) shall apply. The Planning Board shall have the following
powers and duties:
(1)
To prepare, and after public hearing, adopt or amend
a master plan or component parts thereof, to guide the use of lands
within the Borough in a manner which protects public health and safety
and promotes the general welfare, in accordance with the provisions
of N.J.S.A. 40:55D-28.
(2)
To administer site plan and land subdivision review
in accordance with the provisions of this chapter and N.J.S.A. 40:55D-37
through 40:55D-59.
(3)
To grant exceptions from certain requirements for
subdivision and site plan approval pursuant to N.J.S.A. 40:55D-51.
(4)
To approve conditional use applications in accordance
with the provisions of this chapter and pursuant to N.J.S.A. 40:55D-67.
(5)
To consider and make report to the Borough Council
within 35 days after referral as to any proposed development regulation
submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26(a).
The report shall include identification of any provisions in the proposed
development regulation, revision or amendment which are inconsistent
with the Master Plan and recommendations concerning these inconsistencies
and any other matters as the Board deems appropriate. The Borough
Council, when considering the adoption of a development regulation,
revision or amendment thereto, shall review the report of the Planning
Board and may disapprove or change any recommendation by a vote of
a majority of its full authorized membership and shall record in its
minutes the reasons for not following such recommendation. Failure
of the Planning Board to transmit its report within the thirty-five-day
period provided herein shall relieve the Borough Council from the
requirements of this subsection in regard to the proposed development
regulation, revision or amendment thereto referred to the Planning
Board. Nothing in this section shall be construed as diminishing the
application of the provisions of N.J.S.A. 40:55D-32 to any official
map or an amendment or revision thereto or of N.J.S.A. 40:55D-62 to
any zoning ordinance or any amendment or revision thereto.
(6)
To participate in the preparation and review of programs
or plans required by state or federal law or regulations.
(7)
To assemble data on a continuing basis as part of
a continuing planning process.
(8)
To annually prepare a program of municipal capital
improvement projects over a term of six years, and amendments thereto,
and recommend same to the Borough Council pursuant to the provisions
of N.J.S.A. 40:55D-29.
(9)
When reviewing applications for approval of subdivision plats, site
plans or conditional uses, to grant:
[Amended 5-14-2014 by Ord. No. 07-2014]
(a)
Variances pursuant to N.J.S.A. 40:55D-70(c).
(b)
Direction pursuant to N.J.S.A. 40:55D-34 for issuance of permit
for building or structure in the bed of a mapped street or public
drainageway, flood control basin or public area reserved pursuant
to N.J.S.A. 40:55D-32.
(c)
Direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit
for a building or structure not related to a street.
(d)
Waiver of site plan approval where the Planning Board finds
that the application does not involve or require improvements that
affect the chapter standards or requirements relating to:
[1]
Preservation of existing natural resources on the site;
[2]
Safe and efficient vehicular and pedestrian circulation, parking
and loading;
[3]
Screening, landscaping and location of structures;
[4]
Exterior lighting needed for safety reasons in addition to any
requirements for streetlighting;
[5]
Conservation of energy and use of renewable energy resources;
[6]
Recycling of designated recyclable materials.
(e)
Whenever relief is requested pursuant to this subsection, notice
of a hearing on the application for development shall include reference
to the request for a variance, waiver or direction for issuance of
a permit as the case may be.
(10)
Review of capital projects pursuant to N.J.S.A.
40:55D-31.
(11)
To perform such other advisory duties as are
assigned to it by ordinance or resolution of the Borough Council for
the aid and assistance of the Borough Council or other Borough bodies,
agencies, or officers.
(12)
The Borough Council may, by ordinance, provide
for the reference of any matters or class of matters to the Planning
Board before final action thereon by a municipal body or municipal
officer having final authority hereon. Whenever the Planning Board
shall have made a recommendation regarding a matter authorized by
ordinance to another municipal body, such recommendation may be rejected
only by a majority of the full authorized membership of such other
body.
J.
Citizens Advisory Council. The Mayor may appoint one
or more persons as a Citizen Advisory Council to assist or collaborate
with the Planning Board in its duties, but such person or persons
shall have no power to vote or take other action required by the Board.
Such person or persons shall serve at the pleasure of the Mayor.
K.
Environmental Commission. The Mayor may appoint an
Environmental Commission. Whenever the Environmental Commission has
prepared and submitted to the Planning Board an index of the natural
resources of the municipality, the Planning Board shall make available
to the Environmental Commission an informational copy of every application
for development to the Planning Board. Failure of the Planning Board
to make such informational copy available to the Environmental Commission
shall not invalidate any hearing or proceeding.
L.
Simultaneous review. The Planning Board shall have
the power to review and approve or deny conditional uses or site plans
simultaneously with review for subdivision approval without the developer
being required to make further application to the Planning Board,
or the Planning Board being required to hold further hearings. The
longest time period for action by the Planning Board, whether it be
for subdivision, conditional use or site plan approval, shall apply.
Whenever approval of a conditional use is requested by the developer,
notice of the hearing on the plat shall include reference to the request
for such conditional use.
A.
Authorization. Pursuant to N.J.S.A. 40:55D-25(c),
the Planning Board is hereinafter empowered to exercise all the powers
and authority of a Board of Adjustment as set forth in the Municipal
Land Use Law,[1] but the Class I and the Class III members shall not participate
in the consideration of applications for development which involve
relief pursuant to N.J.S.A. 40:55D-70(d).
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
B.
Additional powers of the Planning Board.
(1)
The Planning Board shall have the power to:
(a)
Hear and decide appeals where it is alleged
by the appellant that there is error in any order, requirement, decision
or refusal made by an administrative official or agency based on or
made in the enforcement of the provisions of this chapter adopted
pursuant to N.J.S.A. 40:55D-62 through 40:55D-68.
[1]
Appeals to the Planning Board. Each appeal shall
be taken within the 20 days prescribed by N.J.S.A. 40:55D-72 by filing
a notice of appeal with the officer from whom the appeal was taken,
together with three copies of said notice with the Secretary of the
Planning Board. Said notice of appeal shall specify the grounds for
said appeal; the officer from whom the appeal is taken shall immediately
transmit to the Board all the papers constituting the record upon
which the action appealed from was taken.
[2]
An appeal stays all proceedings in furtherance
of the action in respect of which the decision appealed from was made,
unless the officer from whom the appeal is taken certifies to the
Planning Board after the notice of appeal shall have been filed with
him that by reason of facts stated in the certificate a stay would,
in his opinion, cause imminent peril to life or property. In such
cases, proceedings shall not be stayed otherwise than by a restraining
order which may be granted by the Planning Board or by the Superior
Court of New Jersey on application or notice to the officer from whom
the appeal is taken and on due cause shown.
[3]
The Planning Board may, in conformity with the
provisions of N.J.S.A. 40:55D-1 et seq., reverse or affirm wholly
or partly or may modify the order, requirement, decision or determination
appealed from, and make such other requirement, decision or determination
as ought to be made, and to that end have all the powers of the Administrative
Officer from whom the appeal was taken.
(b)
Hear and decide requests for interpretation
of the Zoning Map[2] or zoning provisions of this chapter adopted pursuant
to N.J.S.A. 40:55D-62 through 40:55D-68, or for decisions upon other
special questions upon which such Board is authorized by this chapter
to pass.
[2]
Editor's Note: The Zoning Map is on file in the Borough offices.
(c)
Grant, upon an application or an appeal, relief
from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68,
except those departures enumerated in N.J.S.A. 40:55D-70d, where:
[1]
The strict application of such regulation would
result in peculiar and exceptional practical difficulties to, or exceptional
and undue hardship upon, the developer of a property for any of the
following reasons:
[a]
By reason of exceptional narrowness,
shallowness or shape of the specific piece of property; or
[b]
By reasons of exceptional topographic
conditions or physical features uniquely affecting the specific piece
of property; or
[c]
By reason of an extraordinary and
exceptional situation uniquely affecting a specific piece of property
or the structures lawfully existing thereon; or
[2]
The purposes of N.J.S.A. 40:55D-1 et seq. would
be advanced by a deviation from the requirements of this chapter and
the benefits of the deviation would substantially outweigh any detriment.
(d)
Grant, upon an application or an appeal, in
particular cases and for special reasons, by affirmative vote of at
least five members, a variance to allow departures from regulations
pursuant to N.J.S.A. 40:55D-62 through 40:55D-68 to permit the following:
[1]
A use or principal structure in a district restricted
against such use or principal structure;
[2]
An expansion of a nonconforming use;
[3]
Deviation from a specification or standard pertaining
solely to a conditional use;
[4]
An increase in the permitted floor area ratio;
[5]
An increase in the permitted density, except
as applied to the required lot area for a lot or lots for detached
one- or two-dwelling-unit buildings which lot or lots are either an
isolated undersized lot or lots resulting from a minor subdivision;
[6]
A height of a principal structure which exceeds
by 10 feet or 10% the maximum height permitted in the district for
a principal structure.
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No variance or other relief may be granted under the terms of
N.J.S.A. 40:55D-70d unless such variance or other relief can be granted
without substantial detriment to the public good and will not substantially
impair the intent and purpose of the zone plan and this chapter. An
application under this section may be referred to any appropriate
person or agency, provided such reference shall not extend the period
of time within which the Planning Board shall act.
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(2)
The Planning Board shall have the power to grant to
the same extent and subject to the same restrictions as the Planning
Board subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37
through 40:55D-59 or conditional use approval pursuant to N.J.S.A.
40:55D-67 whenever the proposed development requires approval by the
Planning Board of a variance pursuant to N.J.S.A. 40:55D-70d. The
developer may elect to submit a separate application requesting approval
of the variance and a subsequent application for any required approval
of a subdivision, site plan or conditional use. The separate approval
of the variance shall be conditioned upon grant of all required subsequent
approvals by the Planning Board. No such subsequent approval shall
be granted unless such approval can be granted without substantial
detriment to the public good and without substantial impairment of
the intent and purpose of the zone plan and zoning regulations. The
number of votes of the Board members required to grant any such subsequent
approval shall be as otherwise provided in N.J.S.A. 40:55D-1 et seq.
for the approval in question, and the special vote pursuant to the
aforesaid Subsection d of N.J.S.A. 40:55D-70 shall not be required.
(3)
The Planning Board shall have the power to direct
issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building
or structure in the bed of a mapped street or public drainageway,
flood control basin or public area reserved on the Official Map.
(4)
The Planning Board shall have the power to direct
issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building
or structure not related to a street.
C.
Report to Borough Council. The Planning Board shall,
at least once a year, review its decision on applications and appeals
for variances and prepare and adopt by resolution a report on its
findings on the provisions of this chapter which were the subject
of variance requests and its recommendations for amendment or revision
of this chapter, if any. The Planning Board shall send copies of the
report and resolution to the Borough Council.
D.
Appeals from Planning Board to governing body. Any
interested party may appeal to the governing body any final decision
of the Planning Board approving an application for development pursuant
to N.J.S.A. 40-55D-70(d). Such appeal shall be made within 10 days
of the date of publication of such final decision pursuant to N.J.S.A.
40:55D-10(i). The appeal shall be made in accordance with the procedure
set forth in N.J.S.A. 40:55D-17.
A.
Meetings.
(1)
The Planning Board shall by its rules fix the time
and place for holding its regular meetings. Regular meetings shall
be scheduled not less than once a month and shall be held as scheduled
unless cancelled for lack of applications for development to process.
(2)
The Planning Board may provide for special meetings,
at the call of the Chairman, or in his absence by the Vice Chairman,
or on the request of any two of its members, which shall be held on
notice to its members and the public in accordance with municipal
regulations and N.J.S.A. 10:4-6 et seq.
(3)
No action shall be taken at any meeting without a
quorum being present.
(4)
All action shall be taken by a majority vote of members
present at the meeting except as otherwise required by N.J.S.A. 40:55D-32,
40:55D-34, 40:55D-62, 40:55D-63, 40:55D-17e, 40:55D-26a and b and
40:55D-70d. 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. Nothing herein shall be construed to contravene
any act providing for procedures for governing bodies.
(5)
All regular meetings and all special meetings shall
be open to the public. Notice of all such meetings shall be given
in accordance with the requirements of the Open Public Meeting Law,
N.J.S.A. 10:4-6 et seq.
(6)
An executive session for the purpose of discussing
and studying any matters to come before the agency shall not be deemed
a regular or special meeting within the meaning of N.J.S.A. 40:55D-1
et seq.
B.
Minutes. Minutes of every regular or special meeting
shall be kept and shall include the names of the persons appearing
and addressing the Planning Board and of the persons appearing by
attorney, the action taken by the Planning Board, the findings, if
any, made by it and reasons therefor. The minutes shall thereafter
be made available for public inspection during normal business hours
at the office of the Planning Board Secretary. Any interested party
shall have the right to compel production of the minutes for use as
evidence in any legal proceedings concerning the subject matter of
such minutes. Such interested party may be charged a reasonable fee
for reproduction of the minutes in an amount sufficient to cover the
cost of such reproduction of the minutes for his use.
C.
Hearings.
(1)
Required hearings. The Planning Board shall hold a
hearing on each application for development.
(2)
Rules for conducting hearings. The Planning Board
shall make rules governing the conduct of hearings before such bodies
which rules shall not be inconsistent with the provisions of N.J.S.A.
40:55D-1 et seq. or this chapter.
(3)
Filing of documents. 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 Planning Board Secretary.
The applicant may produce other documents, records or testimony at
the hearing to substantiate or clarify or supplement the previously
filed maps and documents.
(4)
Oaths. The officer presiding at the hearing or such
person as he may designate shall have power to administer oaths and
issue subpoenas to compel the attendance of witnesses and the production
of relevant evidence, including witnesses and documents presented
by the parties, and the provisions of the County and Municipal Investigations
Law, N.J.S.A. 2A:67A-1 et seq., shall apply.
(5)
Testimony. The testimony of all witnesses relating
to an application for development shall be taken under oath or affirmation
by the presiding officer and the right of cross examination shall
be permitted to all interested parties through their attorneys, if
represented, or directly, if not represented, subject to the discretion
of the presiding officer and to reasonable limitations as to time
and number of witness.
(6)
Evidence. Technical rules of evidence shall not be
applicable to the hearing, but the Board may exclude irrelevant, immaterial
or unduly repetitious evidence.
(7)
Verbatim recording. The Planning Board shall provide
for the verbatim recording of the proceedings by either a stenographer
or by mechanical or electronic means. The Planning Board shall furnish
a transcript or duplicate recording in lieu thereof, on request to
any interested party at his expense, provided that the Borough Council
may provide by ordinance for the municipality to assume the expense
of any transcripts necessary for approval to the Borough Council pursuant
to N.J.S.A. 40:55D-17 of decisions by the Planning Board pursuant
to N.J.S.A. 40:55D-70d, up to a maximum amount as specified by these
regulations.
(8)
Transcript charge. The Planning Board in furnishing
a transcript of the proceeding to an interested party at his expense
shall not charge such interested party more than the maximum permitted
in N.J.S.A. 2A:11-15, as amended.[1] Said transcript shall be certified in writing by the transcriber
to be accurate.
[1]
Editor's Note: N.J.S.A. 2A:11-15 was repealed by L. 1991,
c. 119, § 4, effective 4-25-1991.
(9)
Voting eligibility. A member or alternate member who
was absent for one or more of the meetings at which a hearing was
held shall be eligible to vote on the matter upon which the hearing
was conducted, notwithstanding his or her absence from one or more
of the meetings; provided, however, that such Board member or alternate
member has available to him or her the transcript or recordings of
all of the hearing from which he or she was absent, and certifies
in writing to the Planning Board that he or she has read such transcript
or listened to such recording. This shall not be construed to authorize
any hearing to be held whenever less than a quorum is present.
D.
Notice requirements for hearing. Whenever public notice
of a hearing is required on an application for development, the applicant
shall give notice thereof at least 10 days prior to the date of the
hearing in accordance with the following:
(1)
Public notice of a hearing on an application for development
shall be given for all of the following:
(a)
Appeal or variance pursuant to N.J.S.A. 40:55D-70.
(b)
Directive for issuance of a building permit
pursuant to N.J.S.A. 40:55D-34 or 40:55D-36.
(c)
Conditional uses pursuant to N.J.S.A. 40:55D-67.
(d)
Preliminary major subdivision plats.
(e)
Preliminary major site plans.
(f)
Waiver of site plan approval.
[Added 5-14-2014 by Ord. No. 07-2014]
(2)
Public notice shall be given by publication in the
official newspaper of the Borough, if there be one, or in a newspaper
of general circulation in the Borough.
(3)
Notice of a hearing requiring public notice shall be given to the owners of all real property as shown on the current tax duplicate or duplicates located within 200 feet in all directions of the property which is the subject of such hearing, provided that this requirement shall be deemed satisfied by notice to the 1) condominium association, in the case of any unit owner whose unit has a unit above or below it; or 2) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by serving a copy thereof on the owner as shown on the said current tax duplicate or his agent in charge of the property, or mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate. A return receipt is not required. Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. 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 property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners, or homeowners on account of such common elements or areas. Notice of a hearing requiring public notice pursuant to Subsection D(1), above, shall be given to public utilities and cable television companies in accordance with Subsection D(8).
(4)
Notice of all hearings on applications for development
involving property located within 200 feet of an adjoining municipality
shall be given by personal service or certified mail to the Clerk
of such municipality, which notice shall be in addition to the notice
required to be given to the owners of lands in such adjoining municipality
which are located within 200 feet of the subject premises.
(5)
Notice shall be given by personal service or certified
mail to the County Planning Board of a hearing on all applications
for development of property adjacent to an existing county road or
proposed road shown on the official county map or on the county master
plan, adjoining other county land or situated within 200 feet of a
municipal boundary.
(6)
Notice shall be given by personal service or certified
mail to the Commissioner of the New Jersey Department of Transportation
of a hearing on any application for development of property adjacent
to a state highway.
(7)
Notice of hearings on all applications for approval of a major subdivision or a site plan not defined as a minor site plan in this chapter, requiring public notice pursuant to Subsection D(1), above, shall be given by personal service or certified mail to the corporate secretary of all public utilities and the general manager of all cable television companies that own land or any facility or that possess a right-of-way or easement situated within 200 feet in all directions of the property which is the subject of such hearing. In addition to any notification requirement otherwise imposed under this chapter, an applicant seeking approval of a development which does not require notice as provided above shall be required to provide notice, by personal service or certified mail, to the corporate secretary of any public utility and the general manager of any cable television company that possesses a right-of-way or easement situated within the property limits of the property which is the subject of the application for development approval under this section.
(8)
Any notice made by certified mail as hereinabove required
shall be deemed to be complete upon mailing in accordance with the
provisions of N.J.S.A. 40:55D-14.
(9)
Form of notice. All notices required to be given pursuant
to the terms of this chapter shall state the date, time and place
of the hearing, the nature of the matters to be considered and identification
of the property proposed for development by street address, if any,
and by reference to lot and block numbers as shown on the current
tax duplicate in the Borough Tax Assessor's office and the location
and times at which any maps and documents for which approval is sought
are available for public inspection as required by law.
(11)
List of property owners furnished. Upon the
written request of an applicant, the Municipal Clerk shall, within
seven days, make and certify a list from said current tax duplicates
of names and addresses of owners to whom the applicant is required
to give notice pursuant to this chapter. The applicant shall be entitled
to rely upon the information contained in such list, and failure to
give notice to any owner not on the list shall not invalidate any
hearing or proceeding. A fee shall be charged for such list.
E.
Decisions. Each decision on any application for development
shall be reduced to writing and shall include findings of facts and
conclusions based thereon.
(1)
Reduction to writing shall be accomplished through:
(a)
A resolution adopted at a meeting held within
the applicable time period for taking action on the application for
development; or
(b)
A resolution adopted at a meeting held not later
than 45 days after the date of the meeting at which action to grant
or deny approval was taken memorializing said action.
(c)
Where the Planning Board fails to adopt a resolution,
any interested party may apply to Superior Court in a summary manner
for an order compelling the agency 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 municipality.
(2)
The following members shall be eligible to vote on
the resolution:
(a)
Where the action taken resulted from the failure
of a motion to approve an application, those members voting against
the motion for approval shall be the members eligible to vote on the
resolution.
(b)
In all other circumstances, only the members
who voted for the action taken shall be eligible to vote on the resolution.
(3)
The following shall apply to adoption of the resolution:
(a)
The vote on a resolution shall be deemed to
be a memorialization of the action of the agency and not to be an
action of the agency.
(b)
The vote of a majority of those eligible members
who are present at the meeting at which the resolution is presented
for adoption shall be sufficient to adopt the resolution.
(c)
The date of the adoption of the resolution shall
constitute the date of the decision for purposes of the mailings,
filings, and publications required.
(4)
Copies of the decision shall be distributed by the
Planning Board Secretary as follows:
(a)
A copy shall be mailed within 10 days of the
date of decision to the applicant, or if represented then to his attorney,
without separate charge.
(b)
A copy shall be filed in the office of the Planning
Board Secretary and be made available for public inspection during
reasonable hours.
(c)
A copy shall be made available to any interested
party for a reasonable fee in an amount sufficient to cover the cost
of such copy.
(5)
A brief notice of the decision shall be published
in the official newspaper(s) of the Borough.
(a)
Such publication shall be arranged and proof
of publication shall be obtained by the applicant. All costs for publication
shall be paid by the applicant. Said notice shall be sent by the applicant
within 10 days of the date of decision. Proof of publication shall
be filed with the Planning Board within 20 days of the decision. In
the event that proof of publication is not filed by the applicant
within 20 days, the Secretary of the Planning Board shall have the
right to publish said decision in the official newspaper and all costs
for publications shall be paid by the applicant. The period of time
in which an appeal of the decision may be made shall run from the
first publication of the notice whether arranged by the Borough or
the applicant.
(b)
Such notice shall be published within 30 days
of the date of decision, or 20 days of the date of mailing of a copy
of the decision by the Planning Board Secretary, whichever is later,
or within such other appropriate period as may be determined by the
Planning Board at the time of decision.
(c)
Failure to publish as herein required shall
render any approvals null and void.
F.
Conditional approvals.
(1)
In the event that a developer submits an application
for development proposing a development that is barred or prevented,
directly or indirectly, by 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 Planning Board shall process such
application for development in accordance with the provisions of N.J.S.A.
40:55D-1 et seq. and this chapter, and, if such application for development
complies with the provisions of this chapter, the Planning Board shall
approve such application conditioned on removal of such legal barrier
to development.
(2)
In the event that development proposed by an application
for development requires an approval of a governmental agency other
than the Planning Board, the Planning Board shall, in appropriate
instances, condition its approval upon the subsequent approval of
such governmental agency, provided that the Planning Board shall make
a decision on any application for development within the time period
provided in this chapter and N.J.S.A. 40:55D-1 et seq. or within an
extension of such period as has been agreed to by the applicant unless
the Planning Board is prevented or relieved from so acting by the
operation of law.
(3)
Whenever review or approval of the application by
the County Planning Board is required by N.J.S.A. 40:27-6.3, in the
case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site
plan, the Planning 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.
(4)
The Planning Board may impose such other conditions
as it deems appropriate.
(5)
In all cases the Planning Board shall include a condition
of approval setting forth the time within which all conditions of
approval must be satisfied by the applicant. Failure of the applicant
to meet all conditions of approval within the time specified or within
such extensions thereof as the Planning Board may, from time to time,
grant upon the request of the applicant shall render any approvals
null and void.
(6)
Tolling of running of period of approval. In the event
that, during the period of approval heretofore or hereafter granted
to an application 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 or welfare and the developer is otherwise
ready, willing and able to proceed with said development, the running
of the period of approval shall be suspended for the period of time
said legal action is pending or such directive or order is in effect.
G.
Payment of taxes. Pursuant to the provisions of N.J.S.A.
40:55D-39 and 40:55D-65, every application for development submitted
to the Planning Board shall be accompanied by proof that no taxes
or assessments for local improvements are due or delinquent on the
property which is the subject of such application; or if it is shown
that taxes or assessments are delinquent on said property, any approvals
or other relief granted by the Planning Board shall be conditioned
upon either the prompt payment of such taxes or assessments, or the
making of adequate provision for the payment thereof in such manner
that the municipality will be adequately protected.
H.
Time for decision. After the date an appeal is taken
from the decision of a municipal officer or the submission of a complete
application for development to the Administrative Officer, the Planning
Board shall render its decision within the maximum number of days
as specified below or within such further time as may be consented
to by the applicant. Where more than one type of application is involved,
the longer time period shall apply.
|
Type of Application
|
Time Period
(days)
| ||
|---|---|---|---|
|
Site plans
| |||
|
Minor
|
45
| ||
|
Preliminary approval (10 acres or less, 10 units
or less)
|
45
| ||
|
Preliminary approval (more than 10 acres or
10 units)
|
95
| ||
|
Final approval
|
45
| ||
|
Subdivisions
| |||
|
Minor
|
45
| ||
|
Preliminary approval (10 lots or less)
|
45
| ||
|
Preliminary approval (more than 10 lots)
|
95
| ||
|
Final approval
|
45
| ||
|
Conditional use authorization
|
95
| ||
|
Variance
|
120
| ||
|
Appeal from the decision of a municipal officer
|
120
| ||
|
Direction for issuance of a building permit
|
120
| ||
I.
Separation of applications. A developer whose proposed development requires a variance or direction of the issuance of a permit may elect to submit a separate application requesting the variance or direction of the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan, or conditional use. The separate granting of the variance or direction of the issuance of a permit shall be conditioned upon the granting of all required subsequent approvals by the same approving authority. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided for the approval in question, and any special vote shall not be required. In the event that the developer elects to submit separate consecutive applications, the time period for granting or denying each separate application shall be as provided in Subsection H above.
J.
Time for exercise of variance. Any variance from the terms of any ordinance hereafter granted permitting the direction or alteration of any building, structure or structures, or permitting a specified use of any premises, shall expire by limitation, unless such construction or alteration shall have been actually commenced on each and every structure permitted by the variance, or unless such permitted use has actually been commenced, within 12 months from the date of entry of the decision; provided, however, that the running of the period of limitation herein provided shall be suspended from the date of filing an appeal from the decision to the Borough Council or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding. Where the variance is part of a subdivision or site plan approval, the period of limitation shall coincide with the approval specified in Article IV. If the original applicant, submits a written request to the approving agency not less than 30 days prior to the expiration of the original approval, the time limit set forth above may be extended by the approving agency, for good cause shown, for a period not to exceed two consecutive years, commencing on the original date of expiration. If such construction or alteration has not been actually commenced on each and every structure permitted by the variance, or such permitted use has not actually been commenced, within 24 months from the date of the commencement of the extension, the processing of a completely new application for approval will be required. Official notice of any extensions granted shall be published in two official newspapers of the municipality, within 15 days after the extension is approved.
[Amended 10-24-2012 by Ord. No. 13-2012]
A.
Development permit.
(1)
Development permits shall hereafter be secured from
the Zoning Officer prior to:
(b)
The erection, construction, alteration, repair,
remodeling, conversion, removal or destruction of any building or
structure;
(c)
Application for and/or issuance of any permit
for a new or expanded or relocated sign;
(d)
Application for and/or issuance of any permit
for erection of a fence;
(e)
Any change in use or change in nonresidential
occupancy;
(f)
The excavation, removal, or addition of soil
or fill to or from any site exceeding 10 cubic yards or any alteration
exceeding 5,000 square feet in the natural condition of any undeveloped
parcel of land, including but not limited to the alteration of drainage
patterns, removal of soil, regrading, and removal of trees and ground
cover; provided, however, that such alterations located on and necessary
to the operation of a farm as defined in this chapter shall not require
a development permit;
(g)
Any use of any portion of any parcel of land
for any activity regulated by this chapter;
(h)
The construction of any site improvement either
above or below ground;
(i)
The issuance of any certificate of occupancy
where no building permit was previously required.
(2)
An application for development permit shall be in
writing by the owner or his authorized agent and include the following
unless the Administrative Officer determines that a particular item
is not needed in to order to make a decision:
(a)
A statement of the use or intended use or uses
of the building, structure or land.
(b)
An elevation drawn to scale of the building
or structure to be erected including signs to be placed thereon and
their content and manner of construction.
(c)
A plan drawn to scale showing all proposed and/or
existing buildings, signs, parking areas, setbacks, and yard distances
in exact location to street and lot lines.
(d)
The proportion of existing and proposed lot
coverage.
(e)
The location of any wetlands, easements, or
floodplains.
(3)
The Zoning Officer shall take action on a complete
application for a development permit within 45 days of its submission.
(4)
Prior to issuance of a development permit, the applicant
shall have, where applicable, secured other required permits including,
but not limited to:
(a)
Access permit from the New Jersey Department
of Transportation and/or Monmouth County Engineering Department.
(b)
Drainage permits from the New Jersey Department
of Transportation.
(c)
Stream encroachment permit from the New Jersey
Department of Environmental Protection.
(d)
Coastal Area Facilities Review Act (CAFRA) permit
from the New Jersey Department of Environmental Protection.
(e)
Wetlands permit from the New Jersey Department
of Environmental Protection.
(f)
Riparian construction permit from the New Jersey
Department of Environmental Protection.
(g)
Waterfront development permit from the New Jersey
Department of Environmental Protection.
(h)
Required permits from the U.S. Army Corps of
Engineers and U.S. Coast Guard.
(i)
Sewerage and/or industrial waste treatment permit
from the New Jersey Department of Environmental Protection.
(j)
Land disturbance permit from the Freehold Area
Soil Conservation District.
(k)
Floodplain encroachment permit.
(5)
Prior to the issuance of a development permit, the
applicant shall have secured all approvals required by this chapter
and shall have met any and all conditions of any Planning Board approval.
B.
Subdivision of land.
(1)
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 three years preceding the
effective date of N.J.S.A. 40:55D-1 et seq., may apply in writing
to the Administrative Officer for issuance of a certificate certifying
whether or not such subdivision has been approved by the Planning
Board. Such application shall contain a diagram showing the location
and dimension of the land to be covered by the certificate and the
name and the owner thereof.
(2)
The Administrative Officer shall make and issue such
certificate within 15 days after the receipt of such written application
and the fees therefor. Said officer 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 office.
(3)
Each such certificate shall be designated as "certificate
as to approval of subdivision of land," and shall certify:
(a)
Whether there exists in the Borough a duly established
Planning Board and whether there is an ordinance controlling subdivision
of land adopted under the authority of N.J.S.A. 40:55D-1 et seq.
(b)
Whether the subdivision, as it relates to the
land shown in said application, has been approved by the Planning
Board, and, if so, the date of such approval and any extensions and
terms thereof, showing the subdivision of which the lands are a part
is a validly existing subdivision.
(c)
Whether such subdivision, if the same has not
been approved, is statutorily exempt from the requirement of approval
as provided by N.J.S.A. 40:55D-1 et seq.
(4)
The Administrative Officer shall be entitled to demand
and receive for such certificate issued by him a reasonable fee in
accordance with the fee schedule.
(5)
Any person who shall acquire for a valuable consideration
an interest in the lands covered by such certificates of approval
of a subdivision in reliance upon the information therein contained
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 N.J.S.A. 40:55D-55.
(6)
If the Administrative Officer designated to issue
any such certificate fails to issue the same within 15 days after
receipt of an application and the fees therefor, 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 N.J.S.A. 40:55D-55.
(7)
Any such application addressed to the Municipal 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.
C.
Construction permit.
(1)
No construction permit shall be issued unless the
applicant shall have first secured a zoning permit.
(2)
No building, structure or sidewalk, or curb ramps
shall be erected, added to, or structurally altered until a permit
thereon has been issued by the Construction Official. All applications
for such permits shall be in accordance with the requirements of the
New Jersey State Uniform Construction Code. (N.J.A.C. 5:23-2.14)[2]
D.
Certificate of occupancy.
(1)
Development permit required. No certificate of occupancy
shall be issued for the use of any building, structure or land unless
a development permit shall have first been issued for the use of such
building, structure, or land.
(2)
Uses and occupancies after the effective date of this
chapter.
[Amended 9-13-2006 by Ord. No. 15-2006]
(a)
No building, structure or land shall be occupied
or used until such time as a certificate of occupancy is issued by
the Code Enforcement Officer.
(b)
Such certificates shall be issued upon application
by the owner, prospective occupant, or purchaser only after the Code
Enforcement Officer determines that the facts represented on the application
are correct and that the building, structure or use is in conformance
with the provisions of the Uniform Construction Code[3] and other codes and ordinances affecting construction
and occupancy.
(c)
A temporary certificate of occupancy may be
issued pursuant to the provisions of this chapter for any structure
or use for which site plan approval has been secured, but not all
conditions of approval have been complied with.
(3)
Existing uses at the time of passage of this chapter
or any amendments thereto. The prospective purchaser, prospective
mortgagee, or any other person interested in any land or structure
may apply in writing for the issuance of a certificate certifying
that the use or structure legally existed before the adoption of the
chapter or the amendment and certifying the extent and kind of use.
The applicant shall have the burden of proof. Application pursuant
hereto shall be made to the Borough Administrator within one year
of the adoption of the chapter or the amendment or at any time to
the Planning Board and shall be accompanied by the established fee.
A denial by the Borough Administrator shall be appealable to the Planning
Board pursuant to N.J.S.A. 40:55D-72 et seq.
(4)
Change of occupancy. Whenever there occurs a change in the occupancy or use of any building, structure or land, a new certificate of occupancy shall be applied for, to ensure compliance with all applicable codes and ordinances. The Zoning Officer may issue such certificate if the Administrative Officer determines such change in occupancy is not a change in use as defined in § 150-6 of this chapter and that the applicant has met the requirements of the applicable regulations.
(5)
Scope of certificate of occupancy. The certificate
of occupancy shall contain sufficient information as to the extent
and kind of use or uses, such that any future investigation of the
premises would disclose the extent to which a use was altered. It
shall also indicate whether such use is a permitted or nonconforming
use and the extent to which the use does not conform to the provisions
of this chapter.
(6)
Improvement required. No permanent certificate of
occupancy shall be issued until all required improvements have been
installed in accordance with the provisions of this chapter. A temporary
certificate of occupancy may be issued to permit occupancy for a period
not to exceed 180 days. If at the end of that period the required
improvements have not been completed, the occupancy permit becomes
null and void and the owner may be subject to the penalties herein
defined by this chapter.
E.
Soil erosion and sediment control plan. Where required,
a soil erosion and sediment control plan certification shall be obtained
from the Freehold Area Soil Conservation District prior to subdivision
or the erection of any structure or the alteration of the existing
grade on any lot. No such certification shall be valid until a development
permit shall have first been issued for the subdivision, building,
structure or use.
A.
It shall be the duty of the Administrative Officer
(Planning Board and Zoning Officer) or his designee to keep a record
of all applications, all actions of the municipal agencies, all complaints,
all violations noted and a record or any action taken thereon and
all development permits issued together with a notation of all special
conditions involved. He shall file and safely keep all copies of all
plans submitted, and the same shall form a part of the records of
his office and shall be available for the use of the Borough Council
and of other officials of the Borough.
B.
The Administrative Officer (Zoning Officer) or his
designee shall prepare a monthly report for the Borough Council, summarizing
for a period since his last previous report all development permits
issued and all complaints of violations and the action taken by him
consequent thereon. A copy of each such report shall be filed with
the Borough Administrator, Tax Assessor, Planning Board, Code Enforcement
Officer, Construction Official and Engineer at the same time it is
filed with the Borough Council.
The duty of administering and enforcing the
provisions of this chapter is hereby conferred upon the Zoning Officer,
who shall have such powers as are conferred by this chapter, and as
reasonable may be implied. In no case shall a development permit be
granted for a subdivision or the construction of or alteration of
any building or site where the proposed construction, alteration or
use thereof would be in violation of any provisions of this chapter.
It shall be the duty of the Administrative Officer or his designee
to cause any building, plans or premises to be inspected or examined
and to order in writing the remedying of any conditions found to exist
in violation of this chapter, and the Officer shall have the right
to enter any buildings or premises during the daytime, or other normal
business hours of the premises, in the course of performing these
duties.
In the application and interpretation of these
regulations, all provisions hereof shall be held to be minimum standards
or requirements adopted for the promotion of the public health, safety,
convenience, and general welfare of the Borough. Whenever the requirements
of these regulations are at variance with the requirements of any
other lawfully adopted rules, regulations or ordinances, the most
restrictive of those imposing the higher standard shall govern.
Chapter 146, Zoning, Chapter 120, Subdivision of Land, and Chapter 69, Land Use Procedures, from the Code of the Borough of Atlantic Highlands, are hereby repealed in their entirety and any portions of other ordinances which contain provisions inconsistent with these regulations are hereby repealed to the extent of such inconsistency, except as provided, and, except that any building permit, variance, conditional use permit, occupancy permit or other permit validly issued pursuant to any such ordinance shall remain valid and effective and shall continue to be governed by the terms and conditions of such ordinance.
A.
For a violation of any provision of these regulations, unless a specific penalty is otherwise provided in connection with the regulation violated, the maximum penalty upon conviction of the violation shall be as provided in Chapter 1, Article II, General Penalty. Each day a violation occurs shall constitute a separate offense.
[Amended 6-24-1998 by Ord. No. 14-98][1]
B.
Violations enumerated.
(1)
It shall be a violation of the provisions of these
regulations to:
(d)
After approval of a development permit, fail
to follow, during construction, the approved site or subdivision plans
and/or observe any and all conditions of approval contained in any
resolution of the Planning Board.
(f)
Fail to observe any direction of the Administrative
Officer or his designee with regard to the suspension of any work
not in conformance with approved plans or the conditions of any resolution
of the Planning Board or of the development permit.
(g)
Fail to observe any direction of the Administrative
Officer or his designee with regard to the correction, including any
time limits imposed for such correction, of any work not in conformance
with the approved plans or the conditions of any resolution of the
Planning Board or of the development permit.
(h)
After completion of a development, fail to operate and maintain the site in conformance with the approved plans, any condition of a resolution of the Planning Board or of the development permit and/or any of the provisions or applicable design standards set forth in Articles VII, VIII, and IX of these regulations.
(2)
The above shall not be construed to be an exhaustive
list of those activities or actions or omissions which constitute
violations of these regulations. Engaging in other activities prohibited
by, or failure to engage in other activities required by, these regulations
shall also be considered violations.
C.
Sale or transfer land in subdivision prior to approval.
(1)
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 municipal approval is required by this chapter pursuant
to N.J.S.A. 40:55D-1 et seq., such person shall be subject to a penalty
not to exceed $1,000 and each lot so made may be deemed a separate
violation.
(2)
In addition to the foregoing, the municipality may
institute and maintain a civil action:
(3)
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 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 after the date of the recording of the instrument
of transfer, sale or conveyance of said land or within six years,
if unrecorded.
D.
If, after final approval, it is discovered that there
was any misrepresentation of any statements or proofs contained in
any plat or in any application for approval or in any representations
made to induce approval, the Planning Board or the Borough Council
may, in addition to such other sanctions as are available in the law,
revoke the approval of any plat and proceed as if final approval had
not been obtained.
E.
If the developer or agent of the developer shall, after notification by certified mail from the Zoning Officer or Borough Engineer to cease the construction of improvements, cease the use of certain construction methods and procedures, or cease the use of or lack of use of site maintenance methods and procedures which may result in hazards to life, health or property; continue to carry on the activities specifically included in cessation order(s) from the Zoning Officer or Borough Engineer; then any such developer or agent of such developer shall be subject to a penalty as provided in Chapter 1, Article II, General Penalty. Each and every day that a developer or agent of a developer operates in violation of this chapter after issuance of a cessation order shall be considered a separate and specific violation.[2]
All amendments to this chapter and to the Zoning
Map,[1] which forms a part hereof, shall be adopted in accordance
with the provisions of N.J.S.A. 40:55D-1 et seq., as amended and supplemented.
The map and schedule of area, yard and building requirements may be
amended and supplemented by description and reference thereto, without
republication of the entire map or detailed text of the schedule.
A.
Protest of amendments. A protest against any proposed
amendment or revision of a zoning ordinance may be filed with the
Municipal Clerk, signed by the owners of 20% or more of the area either:
1) of the lots or land included in such proposed change; or 2) of
the lots or land extending 200 feet in all directions therefrom inclusive
of street space, whether within or without the Borough. Such amendment
or revision shall not become effective following the filing of such
protest except by the favorable vote of 2/3 of all members of the
governing body of the Borough.
[1]
Editor's Note: The Zoning Map is on file in the Borough offices.
A.
Effect on new applications. After the effective date of this chapter, all new applications, and any pending applications which have not been approved, shall be subject to all the provisions of this chapter, except as provided by § 150-17B.
B.
Effect on pending applications.
(1)
If the provisions of this chapter cause there to be
a change in the classification of a pending application or require
additional variances or result in greater deviations from the standards
for a pending variance application, the pending application shall
be denied without prejudice. The applicant may submit a new application,
subject to all the provisions of this chapter.
(2)
If the provisions of this chapter require additional
design exceptions or waivers or create greater deviations from standards
for a pending design waiver or exception application, the pending
application shall be denied without prejudice and the Administrative
Officer shall so notify the applicant. However, the pending application
may be continued, provided: i) the applicant submits within 30 days
of the effective date of this chapter an amended application including
a statement justifying the waivers or exceptions; and ii) the Board
shall be required to act within 60 days of the effective date of this
chapter or within the time limits originally applicable to the pending
application, whichever is later.
(3)
If the provisions of this chapter do not cause there
to be a change in the classification of a pending application or require
additional variances or result in greater deviations from the standards
for a pending variance application or require additional design exceptions
or waivers or create greater deviations from standards for a pending
design waiver or exception application, the pending application may
be continued subject to the provisions of the regulations in effect
prior to the adoption of this chapter and to the time limits originally
applicable to the pending application.
C.
All approvals granted after the effective date of
this chapter shall confer upon the applicant all the rights set forth
in this chapter.
Upon adoption of this chapter, and any amendments,
the Municipal Clerk shall file a copy with the Monmouth County Planning
Board as required by N.J.S.A. 40:55D-16. Any zoning ordinance or amendment
or revision which in whole or in part is inconsistent with or not
designed to effectuate the Land Use Plan Element and Housing Plan
Element of the Master Plan shall not take effect until a copy of the
resolution required by N.J.S.A. 40:55D-62 shall be filed with the
Monmouth County Planning Board.
A.
The Planning Board shall require, in addition to the
normal application fees, escrow deposits in accordance with the provisions
of this chapter. Such escrows shall be utilized to pay the costs of
any professional fees, including engineering, legal, planning and
other expenses incurred for review of and/or testimony requested by
a Board concerning an application for development submitted by an
applicant.
B.
The amount of escrow deposit shall be reasonable in
regard to the scale and complexity of the development. All payments
charged to the deposit shall be pursuant to vouchers from the professionals
stating the hours spent, the hourly rate and the expenses incurred.
The Borough shall render a final written accounting to the developer
on the uses to which the deposit was put. Thereafter the Borough shall,
upon written request, provide copies of the vouchers to the developer.
If salary, staff support and overhead for a professional are provided
by the Borough, the charge to the deposit shall not exceed 200% of
the sum of the products resulting from multiplying the hourly base
salary of each of the professionals by the number of hours spent by
the respective professional on review of the application for development
or the developer's improvements, as the case may be. For other professionals
the charge to deposit shall be at the same rate as all other work
of the same nature by the professional for the Borough.
C.
Subject to the provisions of Subsection E(6) hereinbelow, each applicant shall, prior to the application being ruled complete pursuant to the provisions of the Municipal Land Use Law,[1] submit the following sum(s) as application fees and the
following sum(s) to be held in escrow in accordance with the provisions
hereof.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
D.
Every application for development shall be accompanied
by a check payable to Borough of Atlantic Highlands in accordance
with the following schedules.
E.
The application fee is a flat fee to cover direct
administrative expenses and is nonrefundable. Where one application
for development includes several approval requests, the sum of the
individual required fees shall be paid. Application fees for concept
plans may be credited against any future formal applications submitted
by the same developer for the same tract. If final total square footage
is unknown, fees and escrows shall be based upon maximum floor area
permitted under the Schedule of Zoning Requirements, Exhibit 5-2.[2] For site plans involving expansion, addition and modifications of existing buildings, per acre fee and escrow shall be waived and only the per square foot fee shall be charged. Fees for application for development permit, subdivisions, site plans and other submissions shall be as provided in Chapter 168, Article II.
[Amended 4-9-2003 by Ord. No. 2-2003; 2-23-2011 by Ord. No. 03-2011]
(1)
Written agreement. Each applicant for subdivision or site plan approval shall agree in writing to pay all reasonable costs for professional review of the application, including costs incurred with any informal review of a concept plan which may have preceded the submission of a preliminary application and any costs incurred as a result of special meetings required by the application as set forth in Subsection E(5).
(2)
Transcript of hearings. If an applicant desires a
court reporter, the cost of taking testimony and transcribing it and
providing a copy of the transcript to the Borough shall be at the
expense of the applicant who shall arrange for the reporter's attendance.
(3)
Fee for inspection of constructed improvements.
[Amended 7-25-2018 by Ord. No. 09-2018]
(a)
Each applicant shall agree in writing to pay all reasonable
costs for municipal inspection of the constructed improvements. The
applicant shall post inspection fees in escrow with the municipality
in the following amount(s):
[2]
Five percent of the cost of "private site improvements" that are not covered under Subsection E(3)(a)[1] of this section, which cost shall be determined in accordance with N.J.S.A. 40:55D-53.4.
(b)
For those developments for which the inspection fees total less
than $10,000, the fees may, at the option of the developer, be paid
in two installments. The initial amount deposited in escrow by a developer
shall be 50% of the inspection fees. When the balance on deposit drops
to 10% of the inspection fees because the amount deposited by the
developer has been reduced by the amount paid to the Municipal Engineer
for inspections, the developer shall deposit the remaining 50% of
the inspection fees.
(c)
For those developments for which the inspection fees total $10,000
or greater, the fees may, at the option of the developer, be paid
in four installments. The initial amount deposited in escrow by a
developer shall be 25% of the inspection fees. When the balance on
deposit drops to 10% of the inspection fees because the amount deposited
by the developer has been reduced by the amount paid to the Municipal
Engineer for inspections, the developer shall make additional deposits
of 25% of the inspection fees.
(d)
If the municipality determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsection E(3)(a)[1] and [2] herein, is insufficient to cover the cost of additional required inspections, the developer shall deposit additional funds in escrow as may be required by the municipality, provided that the municipality delivers the developer a written inspection escrow deposit request signed by the Municipal Engineer, which:
(e)
In the event that final approval is by stages or sections of
development pursuant to N.J.S.A. 40:55D-38a, the provisions of this
section shall be applied by stage or section.
(f)
The Municipal Engineer shall not perform any inspection if sufficient
funds to pay for those inspections are not on deposit, nor shall the
developer proceed with any work for which an inspection is required
until sufficient funds are on deposit. All such costs for inspections
must be paid before any construction permit is issued, and all remaining
costs must be paid in full before any occupancy of the premises is
permitted or the certificate of occupancy is issued.
(g)
The cost of the installation of improvements shall be estimated
by the Municipal Engineer based on documented construction costs for
public improvements prevailing in the general area of the municipality
pursuant to N.J.S.A. 40:55D-53.4.
(h)
The Municipal Chief Financial Officer shall deposit all fees
for the inspection of constructed improvements in excess of $5,000
in accordance with N.J.S.A. 40:55D-53.1. The inspection fee, until
repaid or applied to the purposes for which it is deposited, including
the applicant's portion of the interest earned thereon, except as
otherwise provided in this section, shall continue to be the property
of the applicant and shall be held in trust by the municipality. Money
deposited shall be held in escrow. The municipality shall deposit
the money in a banking institution or savings and loan association
in this state insured by an agency of the federal government, or in
any other fund or depository approved for such deposits by the state,
in an account bearing interest at the minimum rate currently paid
by the institution or depository on time or savings deposits. The
municipality shall notify the applicant in writing of the name and
address of the institution or depository in which the deposit is made
and the amount of the deposit. The municipality shall not be required
to refund an amount of interest paid on a deposit which does not exceed
$100 for the year. If the amount of interest exceeds $100, that entire
amount shall belong to the applicant and shall be refunded to him
annually or at the time the deposit is repaid or applied to the purposes
for which it was deposited, as the case may be; except that the municipality
may retain for administrative expenses a sum equivalent to 33 1/3%
of that entire amount, which shall be in lieu of all other administrative
and custodial expenses.
(4)
Costs for special meetings. The applicant shall reimburse
the Borough for all costs incurred as a result of any special meeting,
including but not limited to attorneys' fees, engineering fees, transcriber
fees, planning consultant fees and any other expert fees.
(5)
Escrow deposits.
(a)
Within 45 days after the filing of an application
for development, the Planning Board or its designee shall review said
application for development to determine whether the escrow amounts
set forth above are adequate. In conducting such review, the following
criteria shall be considered:
[1]
The presence or absence of public water and/or
sewer servicing the site.
[2]
Environmental considerations, including but
not limited to geological, hydrological and ecological factors.
[3]
Traffic impact of the proposed development.
[4]
Impact of the proposed development on existing
aquifer and/or water quality.
[5]
Impact on improvement which might require off-tract
or off-site contributions agreements.
(b)
If additional sums are deemed necessary, the
applicant shall be notified in writing by the Planning Board or its
designee of the required additional amount and shall add such sum
to the escrow within 10 days of receipt of such notice for additional
sums.
(c)
No application for development shall be deemed complete until such time as the applicant shall have posted with the Borough Treasurer, in cash, certified check or money order, the amount of escrow deposit determined by the Application Review Committee to be required in accordance with the provisions of this chapter. No application shall be deemed complete until the applicant shall complete all forms as required by the Administrative Officer. If additional sums are deemed necessary for the escrow and the applicant fails to pay such sums within 10 days of receipt of written notice required by Subsection E(6), the application will be declared incomplete regardless of the status of the application and any hearings.
(d)
All escrow charges which are due and owing shall
become a lien on the premises with respect to which said charges are
required and shall remain so until paid. Said overdue charges shall
accrue the same interest from time to time as taxes upon real estate
in the Borough. The Borough shall have the same remedies for the collection
thereof with interest, costs and penalties as it has by law for the
collection of taxes upon real estate.
(e)
All such escrow funds shall be utilized by the
appropriate Board to pay the costs of any professional fees incurred
by the Board for review and/or testimony in connection with the particular
application for development. All sums not actually so expended shall
be refunded to the applicant within 60 days after the resolution of
memorialization has been accepted by the appropriate board with respect
to such application upon certification to the Borough by the Planning
Board that the application has been finally determined. The refunding
process will be in accordance with the guidelines and procedures established
by the Division of Local Government Services in effect at that time.
In no event, however, shall the application fees required pursuant
to § 168-2G(1) through (4) be refunded.
(f)
The Borough Treasurer shall deposit all escrow
funds in accordance with N.J.S.A. 40:55D-53.1 and 40A:4-39.
(6)
Reproduction fees. Costs for reproduction of plats,
attachments, maps or other supporting documentation shall be paid
in full by the requestor prior to release in accordance with current
Borough requirements.
(7)
Tax Map revision fees. A fee as provided in Chapter 168, Article II, per lot or unit shall be charged for all minor and major subdivisions, residential unit site plans or condominium or cooperative residential or commercial development to cover the cost of revising the Borough Tax Map. This fee shall be paid prior to signing of the final plat of a major subdivision by the Chairman and the Secretary of the Planning Board and Borough Engineer/Surveyor.
(11)
Site plan charges computation for partial site;
developments. In cases where only a portion of a parcel of site are
to be involved in the proposed site plan, a site area charge may be
charged based upon an area extending 20 feet outside the limits of
all construction including grading and landscaping as well as all
other areas of site the Borough Engineer believes are reasonably affected
by the development application. The 20 feet around disturbed areas
shall not extend beyond the property lines. The Borough may still
require reasonable improvements and upgrading to portions of the site
not within the disturbed or affected areas.
(12)
Supervision.
(a)
No contractor, builder, developer or subcontractor
shall engage any personnel in any of the work on constructing any
improvements unless they are continually supervised by a competent,
English-speaking supervisor acceptable to the Borough Engineer.
(b)
No less than five days prior to commencing construction
of any improvements on the site, the developer or his agent shall
provide the Borough Engineer with the names, addresses, phone numbers
and emergency phone numbers of the subdivider and/or a representative
empowered to act for the developer and/or each contractor and their
supervisor in charge of the construction, setting forth the aspects
of construction for which each is responsible.
[2]
Editor's Note: Exhibit 5-2 is included as an attachment to this chapter.
F.
Fees in lieu of parking. A parking fund is hereby established for
the construction, acquisition, development, expansion or capital repair
of public and municipal parking facilities, to provide funds for the
construction of a municipal garage and for the payment of other traffic-
or transportation-related capital projects or operating expenses of
transit facilities designed to reduce reliance on private automobiles,
programs to facilitate carpooling or ride-sharing and creation of
a safe streetscape for all user groups utilizing all modes of transportation
by introducing context-sensitive design elements at intersections
and corridors, such as wayfinding signage, crosswalks, and user connections
to public and municipal parking facilities.
[Added 9-26-2018 by Ord.
No. 18-2018]
(1)
If the off-street parking requirements of an application for development
are not met as required by the land use regulations of the Borough
of Atlantic Highlands or pursuant to any state standard, such as the
Residential Site Improvements Standards, the developer must:
(a)
Apply for approval of a parking space variance, subject to the
provisions of the applicable land use regulation and, in the event
the variance is granted;
(2)
The developer of a new, reconstructed/redeveloped project within
the HB, HBD, CBD, WB and LI Districts, which application proposes
development with a deficiency in the required number of off-street
parking spaces, shall contribute to the parking fund a fee of $25,000
for each deficient parking space for all new or restored residential
units in the Historic and Central Business Districts, and same shall
apply when the ground floor area ratio of an existing structure is
increased.
[Amended 11-28-2018 by Ord. No. 20-2018; 10-23-2019 by Ord. No. 15-2019]
(3)
The provisions of this subsection shall be severable. In the event
that any portion of this subsection is found to be invalid for any
reason by any court of competent jurisdiction, such judgment shall
be limited in its effect only to the portion of the subsection actually
adjudged invalid and shall not be deemed to effect the operation of
any other portions thereof, which shall remain in full force and effect.
G.
Hiring and payment of expert witnesses; escrow deposit required. The Planning Board shall require, in addition to the application filing fees, escrow deposits which shall be utilized in accordance with the provisions of this section. Such escrow shall be utilized by the Board to pay the cost of any professional fees incurred for review of and/or testimony concerning an application for development submitted by an applicant. The cost of such experts retained by the Planning Board shall be borne by the applicant as set forth in § 150-19A and B herein.
[Added 11-18-2019 by Ord.
No. 16-2019]
(1)
The funds deposited shall be sufficient to reimburse the Borough
for all reasonable costs of consultant and expert evaluation and consultation
which shall be utilized by the Planning Board in connection with the
review of any application. Professional services contemplated shall
include any professional or consultant hired or engaged by the Planning
Board to aid and assist it in reviewing, evaluating and acting upon
development applications, including the hiring of experts for reports
and testimony, if deemed appropriate and necessary as determined by
the Planning Board Engineer upon his review of the application. This
may include review by outside consultants when an application is of
a nature beyond the scope of expertise of the professionals normally
utilized by the municipality.
(a)
Such escrow shall be utilized to reimburse the Borough for all
expenses of technical and professional personnel incurred by it necessary
to process an application for development before the Planning Board,
such as, but not by way of limitation:
[1]
Charges for review by professional personnel of applications
and accompanying documents.
[2]
Issuance of reports by professional personnel to the Planning
Board setting forth recommendations resulting from the review of any
documents submitted by the applicant.
[3]
Charges for a traffic expert whose analysis shall at minimum
include, but not be limited to, the study of two weekdays, one weekend
and at least four one-hour recording periods per day, two of which
must occur during peak hours, in the location of the development.
[4]
Charges for any telephone conference or meeting requested or
initiated by the applicant, his attorney or any of his experts.
[5]
Review of additional documents submitted by the applicant and
issuance of reports relating thereto.
[6]
Review or preparation of easements, developer's agreements,
deeds, resolutions or the like.
[7]
Preparation for and attendance at special meetings.
[8]
The cost of independent expert advice or testimony obtained
by the Planning Board.
(b)
The term "technical and professional personnel" or "professional
services," as used herein, shall include the services of a duly licensed
engineer, surveyor, planner, Planning Board, Municipal or other attorney,
realtor, appraiser, environmentalist, traffic or other experts, and
their employees or staff, who would provide technical and professional
services to ensure an application meets performance standards set
forth in this chapter and generally accepted standards for the particular
professional field. "Professional personnel" or "professional services"
shall also mean experts whose testimony is in an area in which the
applicant has presented expert testimony.
(2)
The Borough shall require the deposit of such escrows into an escrow
account for the purpose of reimbursing the municipality for payment
of such expenses. The applicant shall, as a condition precedent to
the application being deemed complete, submit escrow deposits herein
set forth to be held in escrow in accordance with the provisions hereof.
(3)
In the event that the professional and/or expert charges should deplete
the escrow account by more than 50% of the original submission, the
Chief Financial Officer shall notify the applicant and require payment
of additional escrow sums. Such additional escrow sums shall be sufficient
to restore the escrow account to not less than 75% of the original
escrow deposit.
(4)
No application for development shall be deemed complete until such
time as the applicant shall have posted with the Borough, in cash,
certified check or money order, the amount of escrow deposit maintained
by the Planning Board to be required in accordance with the provisions
of this chapter.
[Added 4-11-2007 by Ord. No. 04-2007; amended 2-11-2009 by Ord. No. 02-2009; 5-22-2019 by Ord. No. 07-2019]
A.
Findings and purpose.
(1)
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550
(1990), the New Jersey Supreme Court determined that mandatory development
fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27d-301
et seq., and the State Constitution, subject to the adoption of rules
by the Council on Affordable Housing (COAH).
(2)
Pursuant to P.L. 2008, c. 46, § 8 (N.J.S.A. 52:27D-329.2)
and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), COAH was authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that were under the jurisdiction of
COAH, and that are now before a court of competent jurisdiction and
have a Court-approved spending plan, may retain and expend fees collected
from both residential and nonresidential development.
(3)
This section establishes standards for the collection, maintenance,
and expenditure of development fees that are consistent with COAH's
regulations developed in response to P.L. 2008, c. 46, §§ 8
and 32-38 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential
Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected
pursuant to this section shall be used for the sole purpose of providing
low- and moderate-income housing in accordance with a Court-approved
spending plan.
C.
AFFORDABLE HOUSING DEVELOPMENT
COAH or THE COUNCIL
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
Definitions. The following terms, as used in this section, shall
have the following meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100% affordable housing development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted by applicable COAH regulations.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with §§ 1,
5, and 6 of P.L. 1973, c.123 (N.J.S.A. 54:1-35a through N.J.S.A. 54:1-35c).
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
D.
Residential development fees.
(1)
Imposition of fees.
(a)
Within the Borough of Atlantic Highlands, all residential developers,
except for developers of the types of developments specifically exempted
below and developers of developments that include affordable housing,
shall pay a fee of 1.5% of the equalized assessed value for all new
residential development, provided no increased density is permitted.
Development fees shall also be imposed and collected when an additional
dwelling unit is added to an existing residential structure; in such
cases, the fee shall be calculated based on the increase in the equalized
assessed value of the property due to the additional dwelling unit.
(b)
When an increase in residential density is permitted pursuant
to a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers
shall be required to pay a bonus development fee of 6% of the equalized
assessed value for each additional unit that may be realized, except
that this provision shall not be applicable to a development that
will include affordable housing. If the zoning on a site has changed
during the two-year period preceding the filing of such a variance
application, the base density for the purposes of calculating the
bonus development fee shall be the highest density permitted by right
during the two-year period preceding the filing of the variance application.
(2)
Eligible Exactions, Ineligible Exactions and Exemptions for Residential
Developments.
(a)
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality, and/or developments where the developer has made
a payment in lieu of on-site construction of affordable units, if
permitted by ordinance or by agreement with the Borough of Atlantic
Highlands, shall be exempt from the payment of development fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption of Atlantic Highlands' first adopted
development fee ordinance shall be exempt from the payment of development
fees, unless the developer seeks a substantial change in the original
approval. Where site plan approval is not applicable, the issuance
of a building permit shall be synonymous with preliminary or final
site plan approval for the purpose of determining the right to an
exemption. In all cases, the applicable fee percentage shall be determined
based upon the development fee ordinance in effect on the date that
the building permit is issued.
(c)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, or is expanded, if the expansion is not otherwise exempt
from the development fee requirement. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(d)
Homes demolished and replaced as a result of a natural disaster
(such as a fire or flood) shall be exempt from the payment of a development
fee.
E.
Nonresidential development fees.
(1)
Imposition of fees.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, shall pay a fee equal to 2.5% of the equalized assessed value
of the land and improvements, for all new nonresidential construction
on an unimproved lot or lots.
(b)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, shall also pay a fee equal to 2.5% of the increase in equalized
assessed value resulting from any additions to existing structures
to be used for nonresidential purposes.
(c)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and improvements and the equalized assessed
value of the newly improved structure, i.e., land and improvements,
and such calculation shall be made at the time a final certificate
of occupancy is issued. If the calculation required under this section
results in a negative number, the nonresidential development fee shall
be zero.
(2)
Eligible Exactions, Ineligible Exactions and Exemptions for Nonresidential
Development.
(a)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to a 2.5% development fee, unless
otherwise exempted below.
(b)
The 2.5% development fee shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within the
existing footprint, reconstruction, renovations and repairs.
(c)
Nonresidential developments shall be exempt from the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to the Statewide Nonresidential Development Fee
Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF
"State of New Jersey Nonresidential Development Certification/Exemption."
Any exemption claimed by a developer shall be substantiated by that
developer.
(d)
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to the Statewide Nonresidential
Development Fee Act shall be subject to the fee at such time as the
basis for the exemption no longer applies, and shall make the payment
of the nonresidential development fee, in that event, within three
years after that event or after the issuance of the final certificate
of occupancy for the nonresidential development, whichever is later.
(e)
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Borough of Atlantic Highlands as a lien
against the real property of the owner.
F.
Collection procedures.
(1)
Upon the granting of a preliminary, final or other applicable approval
for a development, the applicable approving authority shall direct
its staff to notify the Construction Official responsible for the
issuance of a building permit.
(2)
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF "State of New Jersey Nonresidential
Development Certification/Exemption" to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
(3)
The Construction Official responsible for the issuance of a building
permit shall notify the local Tax Assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
(4)
Within 90 days of receipt of such notification, the Borough Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
(5)
The Construction Official responsible for the issuance of a final
certificate of occupancy shall notify the Borough Tax Assessor of
any and all requests for the scheduling of a final inspection on a
property which is subject to a development fee.
(6)
Within 10 business days of a request for the scheduling of a final
inspection, the Borough Tax Assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements associated
with the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
(7)
Should the Borough of Atlantic Highlands fail to determine or notify
the developer of the amount of the development fee within 10 business
days of the request for final inspection, the developer may estimate
the amount due and pay that estimated amount consistent with the dispute
process set forth in Subsection b of § 37 of P.L. 2008,
c.46 (N.J.S.A. 40:55D-8.6).
(8)
Fifty percent of the initially calculated development fee shall be
collected at the time of issuance of the building permit. The remaining
portion shall be collected at the time of issuance of the certificate
of occupancy. The developer shall be responsible for paying the difference
between the fee calculated at the time of issuance of the building
permit and that determined at the time of issuance of the certificate
of occupancy.
(9)
Appeal of development fees.
(a)
A developer may challenge residential development fees imposed
by filing a challenge with the County Board of Taxation. Such a challenge
must be made within 45 days from the issuance of the certificate of
occupancy. Pending a review and determination by the Board, collected
fees shall be placed in an interest-bearing escrow account by the
Borough of Atlantic Highlands. Appeals from a determination of the
Board may be made to the tax court in accordance with the provisions
of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1, et seq.,
within 90 days after the date of such determination. Interest earned
on amounts escrowed shall be credited to the prevailing party.
(b)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by the Borough of
Atlantic Highlands. Appeals from a determination of the Director may
be made to the tax court in accordance with the provisions of the
State Tax Uniform Procedure Law, N.J.S.A. 54:48-1, et seq., within
90 days after the date of such determination. Interest earned on amounts
escrowed shall be credited to the prevailing party.
G.
Affordable housing trust fund.
(1)
There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Borough of Atlantic Highlands for the purpose of depositing development
fees collected from residential and nonresidential developers and
proceeds from the sale of units with extinguished controls.
(2)
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(a)
Payments in lieu of on-site construction of affordable units
or of a fraction of an affordable unit, where permitted by ordinance
or by agreement with the Borough of Atlantic Highlands;
(b)
Funds contributed by developers to make 10% of the adaptable
entrances in a townhouse or other multistory attached dwelling unit
development accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Atlantic Highlands'
affordable housing program.
(3)
In the event of a failure by the Borough of Atlantic Highlands to
comply with trust fund monitoring and reporting requirements or to
submit accurate monitoring reports; or a failure to comply with the
conditions of the judgment of compliance or a revocation of the judgment
of compliance; or a failure to implement the approved spending plan
and to expend funds within the applicable required time period as
set forth in In re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015)
(aff'd 442 N.J. Super. 563); or the expenditure of funds on activities
not approved by the Court; or for other good cause demonstrating the
unapproved use(s) of funds, the Court may authorize the State of New
Jersey, Department of Community Affairs, Division of Local Government
Services (LGS), to direct the manner in which the funds in the Affordable
Housing Trust Fund shall be expended, provided that all such funds
shall, to the extent practicable, be utilized for affordable housing
programs within the Borough of Atlantic Highlands, or, if not practicable,
then within the county or the housing region.
(a)
Any party may bring a motion before the Superior Court presenting
evidence of such condition(s), and the Court may, after considering
the evidence and providing the municipality a reasonable opportunity
to respond and/or to remedy the noncompliant condition(s), and upon
a finding of continuing and deliberate noncompliance, determine to
authorize LGS to direct the expenditure of funds in the Trust Fund.
The Court may also impose such other remedies as may be reasonable
and appropriate to the circumstances.
(4)
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
H.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the Affordable Housing Trust Fund
may be used for any activity approved by the Court to address the
Borough of Atlantic Highlands' fair share obligation and may be set
up as a grant or revolving loan program. Such activities include,
but are not limited to preservation or purchase of housing for the
purpose of maintaining or implementing affordability controls; housing
rehabilitation; new construction of affordable housing units and related
costs; accessory apartments; a market to affordable program; Regional
Housing Partnership programs; conversion of existing nonresidential
buildings to create new affordable units; green building strategies
designed to be cost saving and in accordance with accepted national
or state standards; purchase of land for affordable housing; improvement
of land to be used for affordable housing; extensions or improvements
of roads and infrastructure to affordable housing sites; financial
assistance designed to increase affordability; administration necessary
for implementation of the Housing Element and Fair Share Plan; and/or
any other activity permitted by the Court and specified in the approved
spending plan.
(2)
At least 30% of all development fees collected and interest earned
on such fees shall be used to provide affordability assistance to
low- and moderate-income households in affordable units included in
the municipal Fair Share Plan. One-third of the affordability assistance
portion of development fees collected shall be used to provide affordability
assistance to those households earning 30% or less of the median income
for Housing Region 4, in which Atlantic Highlands is located.
(a)
Affordability assistance programs may include down payment assistance,
security deposit assistance, low interest loans, rental assistance,
assistance with homeowners association or condominium fees and special
assessments, and assistance with emergency repairs. The specific programs
to be used for affordability assistance shall be identified and described
within the spending plan.
(b)
Affordability assistance to households earning 30% or less of
median income may include buying down the cost of low or moderate
income units in the municipal Fair Share Plan to make them affordable
to households earning 30% or less of median income. The specific programs
to be used for very low income affordability assistance shall be identified
and described within the spending plan.
(c)
Payments in lieu of constructing affordable housing units on
site, if permitted by ordinance or by agreement with the Borough of
Atlantic Highlands, and funds from the sale of units with extinguished
controls shall be exempt from the affordability assistance requirement.
(3)
The Borough of Atlantic Highlands may contract with a private or
public entity to administer any part of its Housing Element and Fair
Share Plan, including its programs for affordability assistance.
(4)
No more than 20% of all revenues collected from development fees
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or consultants' fees
necessary to develop or implement a new construction program, prepare
a Housing Element and Fair Share Plan, and/or administer an affirmative
marketing program or a rehabilitation program.
(a)
In the case of a rehabilitation program, the administrative
costs of the rehabilitation program shall be included as part of the
20% of collected development fees that may be expended on administration.
(b)
Administrative funds may be used for income qualification of
households, monitoring the turnover of sale and rental units, and
compliance with COAH's monitoring requirements. Legal or other fees
related to litigation opposing affordable housing sites or related
to securing or appealing a judgment from the Court are not eligible
uses of the Affordable Housing Trust Fund.
I.
Monitoring. The Borough of Atlantic Highlands shall provide annual
reporting of Affordable Housing Trust Fund activity to the State of
New Jersey, Department of Community Affairs, Council on Affordable
Housing or Local Government Services or other entity designated by
the State of New Jersey, with a copy provided to Fair Share Housing
Center and posted on the municipal website, using forms developed
for this purpose by the New Jersey Department of Community Affairs,
Council on Affordable Housing or Local Government Services. The reporting
shall include an accounting of all Affordable Housing Trust Fund activity,
including the sources and amounts of funds collected and the amounts
and purposes for which any funds have been expended. Such reporting
shall include an accounting of development fees collected from residential
and nonresidential developers, payments in lieu of constructing affordable
units on site (if permitted by ordinance or by agreement with the
Borough), funds from the sale of units with extinguished controls,
barrier free escrow funds, rental income from Borough owned affordable
housing units, repayments from affordable housing program loans, and
any other funds collected in connection with Atlantic Highlands' affordable
housing programs, as well as an accounting of the expenditures of
revenues and implementation of the spending plan approved by the Court.
J.
Ongoing collection of fees.
(1)
The ability for the Borough of Atlantic Highlands to impose, collect
and expend development fees shall expire with the expiration of the
repose period covered by its judgment of compliance unless the Borough
of Atlantic Highlands has first filed an adopted Housing Element and
Fair Share Plan with the Court or with a designated state administrative
agency, has petitioned for a judgment of compliance from the Court
or for substantive certification or its equivalent from a state administrative
agency authorized to approve and administer municipal affordable housing
compliance and has received approval of its development fee ordinance
from the entity that will be reviewing and approving the Housing Element
and Fair Share Plan.
(2)
If the Borough of Atlantic Highlands fails to renew its ability to
impose and collect development fees prior to the expiration of its
judgment of compliance, it may be subject to forfeiture of any or
all funds remaining within its Affordable Housing Trust Fund. Any
funds so forfeited shall be deposited into the "New Jersey Affordable
Housing Trust Fund" established pursuant to § 20 of P.L.
1985, c. 222 (N.J.S.A. 52:27D-320).
(3)
The Borough of Atlantic Highlands shall not impose a residential
development fee on a development that receives preliminary or final
site plan approval after the expiration of its judgment of compliance,
nor shall the Borough of Atlantic Highlands retroactively impose a
development fee on such a development. The Borough of Atlantic Highlands
also shall not expend any of its collected development fees after
the expiration of its judgment of compliance.
