Borough of Westwood, NJ Administrative and Enforcement Provisions; Fees; Improvements

Subdivisions. Any owner of land lying within the Borough shall, prior to subdividing or resubdividing of land as defined in this chapter, and before conveying legal or equitable title to such subdivision or any part thereof, apply to the Planning Board for review and approval of the subdivision plat pursuant to the provisions of this chapter.

Site plan. Prior to the issuance of any construction permit or certificate of occupancy, as the case may be, for any new structure or addition to an existing structure, a site plan shall be submitted to the Planning Board, or to the Board of Adjustment as provided by statute, for its review and approval. The Planning Board may waive any or all site plan approval requirements if the construction or alteration or change of occupancy or use does not materially affect existing circulation, drainage, relationships of buildings to each other, landscaping, buffering, lighting and other considerations of site plan review.

Enforcement. The rules, regulations and standards contained in this chapter shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Borough. Any action taken by the Borough under the terms of this chapter shall give primary consideration to the purposes and provisions of this chapter and to the welfare of the entire community. Moreover, if an applicant or his agent can clearly demonstrate that, because of the peculiar conditions pertaining to his land, the literal enforcement of one or more of these regulations is impractical or will exact undue hardship, the appropriate municipal agency may permit such exceptions or exceptions as may be reasonable and within the general purpose and intent of the rules, regulations and standards established by this chapter.

§ 195-44 Powers and duties of enforcing officers.

It shall be the duty of the Zoning Officer to administer and enforce the provisions of this chapter and, in so doing, to inspect periodically the structures and land in the Borough, to investigate violations of this chapter coming to his attention, to serve notice upon property owners to abate any condition found to exist in violation of any provision(s) of this chapter, to sign complaints where justified and to cooperate with other Borough officials in the prosecution of violators. The enumeration herein of the duties of the Construction Official and the Zoning Officer shall not mean that other officials and employees shall be relieved of their obligation to enforce this chapter. The Construction Official and the Zoning Officer, or other Borough employees authorized by the Borough, shall have the right to inspect any lot or building at reasonable times for the purpose of investigating possible violations of this chapter.

If the Zoning Officer finds any substantial deviation from any approved plans, he shall notify the permittee and the Borough Clerk, in writing, of the deviation. The Zoning Officer and the Borough may take such action as is provided in this chapter.

§ 195-45 Construction permits and plans; certificates of occupancy; zoning compliance certificate.

A zoning compliance certificate (permit/approved application) shall be required as a condition precedent to the commencement of a use (in accordance with Subsection C) or the erection, construction, reconstruction, alteration, conversion or installation of a building or structure, certifying that such use, building or structure complies with the provisions of this chapter. Structures for the purpose of this section shall include, among other items, site improvements, such as driveways, walls, fences and any impervious coverage. No sign erection permit shall be issued by the Construction Official except upon application therefor in conformity with this chapter.

[Amended 9-4-2001 by Ord. No. 01-19; 12-17-2002 by Ord. No. 02-19]

Certificates of occupancy.

No land shall be occupied or used, and no buildings hereafter erected, altered or changed in tenancy, use or ownership shall be occupied, in whole or in part, until a certificate of occupancy shall have been issued by the Construction Official.

A temporary certificate of occupancy may be issued to a holder of a permit prior to completion of construction, provided that such occupancy shall not endanger life or public welfare and not until all required utilities, including but not limited to water, sewer, electric and fuel, are installed and in service (UCC).

A posting of a bond to ensure the completion of the work pursuant to other applicable laws and ordinances may be made a condition for a temporary certificate of occupancy.

Written application shall be made by the owner or his agent for a certificate of occupancy when all requirements of a construction permit are met or, in the case of reoccupancy or change in ownership, when it is established after general inspection of the visible parts of the premises and investigation of available municipal records that no violations of the Uniform Construction Code[1] or this chapter have been found and that no unsafe conditions shall exist.

Editor's Note: See Ch. 129, Construction Codes, Uniform, and N.J.A.C. 5:23-1.1 et seq.

Zoning compliance certificate.

Certificates required for changes in use, occupancy or ownership of certain lands and buildings. The Borough of Westwood requires a zoning compliance certificate to be obtained by the owner and occupant (one certificate may be issued to both) of the various classes of buildings listed below prior to the occurrence of changes in use, occupancy or ownership of certain buildings. The chart below lists the nature of the buildings and the types of changes which trigger the requirement for a certificate of zoning compliance.[2]

Use	Change of Tenant	Change of Use	Sale or Transfer of Ownership
Single-family home	Yes	Yes	Yes
Two-family or multiple dwelling (any unit)	Yes	Yes	Yes
Industrial	Yes	Yes	Yes
Commercial	Yes	Yes	Yes
Retail	Yes	Yes	Yes
Office	Yes	Yes	Yes
Other	Yes	Yes	Yes

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

The zoning compliance certificate shall be on a form to be furnished by the Zoning Officer and shall state that the entire building and the specific portion in question and the site improvements for said building are in compliance with this chapter. In the event said premises exist as a valid preexisting nonconforming use or structure, said certificate must include the affirmative findings that the change does not alter the extent of any nonconformity, including coverage, parking or intensity of use.

Issuance.

(a)

The Zoning Officer shall issue all such certificates when the property in question is utilized exclusively for lawful conforming residential and commercial tenants and legal tenants in preexisting nonconforming buildings in accordance with the provisions of § 195-132, Nonconforming uses, structures and lots. Certificates for all other types of uses shall be issued by the Planning Board; provided, however, that this requirement shall be waived whenever the Zoning Compliance Committee shall unanimously recommend issuance.

[Amended 12-17-2002 by Ord. No. 02-19]

(b)

Zoning Compliance Committee.

The Zoning Compliance Committee shall be established, from time to time, by resolution of the Planning Board and shall consist of the Zoning Officer, the Planning Board Engineer and one additional person who shall be either a member of the Westwood Planning Board or a licensed professional planner.

The Zoning Compliance Committee shall have no authority to deny a request for a certificate for zoning compliance. It shall only be empowered to decline to issue same where it appears that the premises, as proposed to be used, is not in compliance with the provisions of this chapter. In such an event the applicant shall be entitled to request issuance of the certificate of zoning compliance from the Westwood Planning Board.

(c)

Wherever, in connection with the proposed change of use or occupancy of a parcel of land or structure, the applicant obtains a variance or site plan approval from the Board of Adjustment or the Planning Board, the Board issuing the approval shall be authorized to issue the certificate of zoning compliance as part of said proceedings.

§ 195-46 Stop orders; revocation of permits.

[Amended 9-4-2001 by Ord. No. 01-19]

Stop orders. In the event that a permittee shall fail to comply with any condition or regulation or provisions of an approved plan, the Construction Official may issue a stop order on all construction work within the area encompassed by the approved plan, which order may include requirements for the prompt correction of adverse conditions. Thereafter, no construction work of any type shall be performed within the area of the approved plan except such work as is in accordance with the requirements of the Construction Official as set forth in said order or in accordance with the approved plan.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

Permit revocation. In the event of a failure to comply with any condition of an approved soil erosion and sediment control plan or tree removal plan, upon recommendation of the Borough Engineer, the Borough may revoke any construction permit for any property upon which such noncompliance occurs or for any property affected by such noncompliance. The Borough may also seek to enjoin the violation or take such other steps as permitted by law.

Revocation of construction permit or certificate of occupancy. In the event of a failure to comply with any condition of final site plan approval, the Construction Official, on his or her initiative, may revoke the construction permit or certificate of occupancy, as the case may be, and seek to enjoin the violation or take such other steps as permitted by law.

§ 195-47 Appeals.

General. Any person aggrieved by any decision or action of the Zoning Officer or the Borough Engineer under this chapter may appeal to the Borough Council, in writing, such appeal to be filed with the Borough Clerk within 10 days from the date of the decision or action complained of. The appellant shall be entitled to a hearing before the Borough Council, which shall fix a date therefor not less than 20 days nor more than 30 days from the date of the decision appealed from. Upon such hearing or within 10 days thereafter, the Borough Council shall affirm, alter or rescind the decision or action complained of with written findings and conclusions.

Appeal. Where the Construction Official or the Borough Engineer has issued a stop order or has revoked a construction permit, the permittee shall have a right to appeal the determination to the Bergen County Construction Board of Appeals when the appeal involves a matter under the jurisdiction of the Uniform Construction Code.[1] Said notice of appeal shall be filed in accordance with the requirements of said Board. If the subject matter of the appeal is other than a Uniform Construction Code matter, then the permittee shall have a right to appeal the determination to the Borough Council. Said notice of appeal shall be filed with the Borough Clerk within 10 calendar days of the date of the action of the Borough Engineer in issuing the stop-work order. The Borough Council shall, upon receipt of said notification, provide a hearing to the permittee within 10 days of the date of the filing of the appeal and shall render its decision upon the conclusion of the hearing and in no case later than seven days from termination of the hearing.

[Amended 9-4-2001 by Ord. No. 01-19]

Editor's Note: See Ch. 129, Construction Codes, Uniform, and N.J.A.C. 5:23-1.1 et seq.

§ 195-48 Violations and penalties.

Any person who violates any of the provisions of this chapter, or who fails to comply with any of the requirements thereof, or who erects, raises, moves, extends, enlarges, alters or demolishes any structure in violation of any detailed statement or plan submitted hereunder, or who puts into use any lot or premises in violation of any detailed statement or plans submitted hereunder or who refuses reasonable opportunity to inspect any premises shall, upon conviction thereof by any court authorized by law to hear and determine the matter, be liable to one or more of the following: a fine of not more than $2,000, or imprisonment for a term of not more than 90 days, or a period of community service not to exceed 90 days, as such court in its discretion may impose. Each day during or on which a violation occurs or continues shall be deemed a separate offense.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

Selling land before final subdivision approval.

If, before final subdivision approval, any person, as owner or agent, transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision for which municipal approval is required, such persons shall be subject to a penalty not to exceed $1,000, and each lot disposition so made may be deemed a separate violation.

In addition, the Borough may institute and maintain a civil action: for injunctive relief; to set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of compliance has not been issued in accordance with N.J.S.A. 40:55D-56, but only if the municipality has a Planning Board and has adopted, by ordinance, standards and procedures in accordance with N.J.S.A. 40:55D-38. 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.

§ 195-49 Fees.

General.

Every application for development shall be accompanied by the payment of a fee, as set forth on the exhibit annexed hereto and made a part hereof entitled "Fees and Deposits," for land development applications before the Planning Board or Zoning Board of the Borough of Westwood.[1] Application fees are not refundable. The administration of the professional escrow fees provided for herein shall be governed by § 195-50 of the Westwood Code.

[Amended 11-24-2009 by Ord. No. 09-26]

Editor's Note: Exhibit A, Fees and Deposits, is included at the end of this chapter.

Where one application for development includes several approval requests, the sum of the individual required fees shall be paid.

No fees shall be returned to the applicant after public hearing has commenced.

If any applicant desires a court reporter, the cost of taking testimony and transcribing it and providing a copy of the transcript for the board hearing the application shall be at the expense of the applicant, who shall arrange for the reporter's attendance.

(5)

Schedule of application fees to be paid at the time of the filing of the application.[2]

Editor's Note: See Exhibit A, Fees and Deposits, included at the end of this chapter.

Inspection fees.

In addition to the fees for the review of subdivisions and site plans, there shall also be an inspection fee of 2.5% of the estimated cost of improvements on site plans and an inspection fee of 5% of the estimated cost of the improvements for subdivisions, as estimated by the Borough Engineer and payable at the time of the commencement of construction. This charge shall be for the purpose of defraying the costs of inspections of the installation of the improvements required by the Planning Board.

All permits, determinations, resolutions or certificates of approval are subject to the payment of all fees required in this section.

All applicants or appellants other than a department board or agency of the Borough shall pay the applicable fees unless such fee is specifically waived by the Borough Council. Such waivers shall only be considered for nonprofit organizations.

§ 195-50 Payment for professional services; escrow deposits.

In addition to the filing fees and any other fees or payments required by this chapter, the applicant for any development application, appeal or other matter pursuant to this chapter shall be responsible to reimburse the Borough for payments made to professionals for services rendered to the Borough related to such application, appeal or other matter. The following provisions shall apply to such payments:

Initial deposits for professional services. The required escrow fees shall be collected by the Borough's Finance Office at the time of the filing of the application. It shall be the responsibility of the Finance Office to assign and issue all escrow account numbers at the time of filing an application. These fees are to be applied for the review of applications by the professional staff/consultants and shall include all office review, phone correspondence, preparation of reports, conferences, appearance at meetings, or other purposes under the provisions of this chapter or the Municipal Land Use Law.[1] For purposes of this section, "professional staff" shall include the Borough Planner and Borough Engineer, and such other professionals as may be deemed necessary by the Planning Board or the Zoning Board of Adjustment to review an application. Deposits shall be paid by personal check, certified check, cashier's check, or bank money order. In the case of proposals requiring a combination of approvals, such as a subdivision, site plan and/or variance(s), the applicant shall deposit an amount equal to the sum of the deposits required for each application.

[Amended 9-4-2001 by Ord. No. 01-19]

Editor's Note: See N.J.S.A. 40:55D-1 et seq.

Inspection fees. In addition to the fees set forth for the review of subdivision plans and site plans, there shall also be an inspection fee of 2.5% of the estimated cost of improvements on site plans and an inspection fee of 5% of the estimated cost of the improvements for subdivisions, as estimated by the Borough Engineer and payable at the time of the commencement of construction. This charge shall be for the purpose of defraying the costs of inspections of the installation of the improvements required by the Planning Board. In the event that there is no new schedule of fees filed by the professionals, the schedule previously filed by the professional shall prevail.[2]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

Subsequent deposits for professional services. In the event that the amount in the individual account for professional services should become depleted to less than 25% of the initial deposit required by this chapter, and if the Secretary determines that additional funds are necessary to cover the cost of processing said application, the Secretary shall notify the applicant immediately of such depletion. Upon receiving such notice, the applicant shall deposit additional funds as necessary to make the amount in the account not less than 50% of the initial deposit required by this chapter for professional services.

Failure to maintain deposit for professional services. If the required funds for professional services are not deposited in a timely manner, the Secretary shall notify the Borough agency having jurisdiction over the application and shall send copies of said notification to the Borough Finance Director. Upon receipt of the copy of notification, the Finance Officer shall immediately inform the Mayor and Council of said notification. No further action shall be taken on the application unless the deposits have been made by the applicant as required above. In the event that the time for action by a Borough agency as required by this chapter shall expire prior to the payment of the required deposits, the reviewing agency shall have the option of dismissing the application.

Vouchers for payment of professional services. All payments charged to a deposit required by this section shall be made pursuant to written monthly vouchers for each application from the professional(s), stating the hours spent, the hourly rate and the expenses incurred. The Borough shall render a written final accounting to the applicant on the uses to which the deposit was put.

Procedure for payment of vouchers; appeals of charges. The following procedure shall apply to the payment of vouchers for professional services pursuant to this section:

The office of the professional(s) shall submit a copy of said voucher to the applicant.

Within 14 days of the mailing of said vouchers, the applicant may request in writing a hearing on the reasonableness of the charges contained in said vouchers. Any such hearing shall be held by the Borough agency with jurisdiction over the application.

In the event the applicant requests such hearing, no payments shall be made pursuant to the disputed voucher(s) until the Borough agency shall have ruled on the appeal. If the Borough agency finds in favor of the applicant, payment pursuant to said voucher(s) shall be adjusted accordingly.

All vouchers for payment of professional services pursuant to this section shall be submitted to the Borough agency for whom the services were performed. The Borough agency shall, at a public hearing, approve or deny payment of the vouchers. No voucher shall be denied payment without giving the professional submitting the voucher an opportunity to be heard concerning the reasonableness of said voucher.

(5)

If no hearing is requested as outlined above, or if the Borough agency finds in favor of the professional, payment shall be made pursuant to the voucher.

(6)

If approved by the Borough agency, the voucher shall be directed to the Borough Finance Director for reimbursement to the professional for services rendered.

§ 195-51 Performance and maintenance guarantees.

Before execution of the final subdivision plat, as a condition of final site plan approval, or as a condition to the granting of a development approval pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall have installed all improvements required by the Planning Board, except that the Borough Council may require and shall accept, in accordance with the standards adopted herein for the purpose of assuring the installation and maintenance of on-tract improvements, the following:

The furnishing of a performance guarantee in favor of the Borough in an amount not to exceed 120% of the cost of installation for all improvements not installed prior to final approval.

A maximum of 10% of the total guarantee required shall be in cash. All of the improvements shall be subject to inspection and approval by the Borough Engineer, who shall be notified by the developer at least 48 hours prior to the start of the construction. No underground installations shall be covered until inspected and approved.

There shall be provision for a maintenance guarantee, to be posted with the Borough Council for a period not to exceed two years after final acceptance of the improvements, in an amount not to exceed 15% of the cost of the improvements.

The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of installation as determined as of the time of the passage of the resolution.

If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable cost of the improvements not completed or corrected, and the Borough may, either prior to or after the receipt of the proceeds thereof, complete such improvements.

Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the Borough Council, in writing, by certified mail, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactory completed improvements. A copy of the request shall be sent to the Borough Engineer. The request shall indicate which improvements remain uncompleted in the judgment of the obligor. Thereupon the Borough Engineer shall inspect all improvements covered by the request and shall file a written list and report with the Borough Council, with a copy to the obligor, not later than 45 days after the receipt of the obligor's request.

The list prepared by the Borough Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report shall also identify each improvement determined to be complete and satisfactory, together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section.

The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of these improvements, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

In the event that the obligor has made a cash deposit with the Borough or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements, and, upon completion or correction, the same procedure of notification as set forth in this section shall be followed.

Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination or lack of a determination of the Borough Council or the Borough Engineer.

The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements, provided that the Borough may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees. For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

In the event that final approval is by stages or sections of development pursuant to Subsection (a) of Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.

To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Borough Engineer.

Building permits in a subdivision or site plan or approved subsection thereof, except for model buildings in the first subsection, will be issued only when all improvements, with the exception of the following, shall have been installed to serve all lots and structures within the subdivision or site plan, or approved subsection thereof, and approved by the Borough Engineer:

The final bituminous surface course of streets;

Street signs;

Dry wells and swales as may be required;

Monuments;

Shade trees;

Sidewalks; and

In the case of site plans only, landscaping.

Permits for model buildings in the front subsection or 10% of the total number to be built in said subsection, whichever is less, not to exceed six, may be issued on commencement of construction of improvements.

Installation of sidewalks on a lot shall be completed prior to the issuance of a certificate of occupancy for that lot.

Notwithstanding any provision of this chapter to the contrary, upon completion of all improvements, but prior to acceptance by the Borough Council of such improvements, and prior to the release of any performance guarantee which may have been posted, deeds must be received, free and clear of all mortgages and encumbrances, for all fee and other property interests and improvements to be conveyed to the Borough.

A site plan bond shall be posted prior to earth disturbance.

§ 195-52 Developer's agreement; fees for inspections of improvements.

[Amended 9-5-2006 by Ord. No. 06-16; 11-24-2009 by Ord. No. 09-26]

Whenever a land use approval is granted which includes construction within, or disturbance of, the public right-of-way or any publicly owned infrastructure, or where the proposed on-site construction activities have the potential for an adverse impact upon adjacent lands or the creation of a nuisance on the subject property, the developer shall be obligated to enter into a developer's agreement between the developer and the Mayor and Council, which agreement shall be prepared, at the applicant's expense, by the Borough Attorney. Prior to preparation of the developer's agreement, the applicant shall post a deposit of $1,000 in escrow with the Borough of Westwood to defray the initial expense of same. At or prior to the execution of said agreement, or sooner in complex matters, the developer shall pay an additional amount into the escrow fund to defray expenses incurred by the Borough of Westwood. Such funds shall be administered in accordance with the Municipal Land Use Law.[1]

Editor's Note: See N.J.S.A. 40:55D-1 et seq.

In addition to the amounts required to be deposited for a developer's agreement, the developer shall also post estimated fees for inspections of improvements by the Borough Engineer in accordance with N.J.S.A. 40:55D-53 et seq. The amount requested for inspection escrow fees shall be an estimate based upon 5% of the cost of site improvements, both on site and within the municipal right-of-way, but exclusive of any building construction. For those developments for which the inspection fees are less than $10,000, the fees may be paid in two installments. For those developments for which the inspection fees are $10,000 or greater, fees may be paid in four installments. Administration and replenishment of the inspection escrow account shall be as set forth in N.J.S.A. 40:55D-53, Subsection h, and as provided for in N.J.S.A. 40:55D-53.1 through N.J.S.A. 40:55D-53.4.

§ 195-53 Off-tract improvements.

Pursuant to the powers established in N.J.S.A. 40:55D-42, the following standards are hereby promulgated with respect to determining the proportionate or pro rata share of an applicant for a required off-tract improvement. Prior to the granting of final approval of a subdivision, the applicant shall have installed or made cash payments, in the manner provided for below, with respect to the immediate or ultimate installation of any required off-tract improvement.

Allocation of costs; criteria in determining allocation. The allocation or costs for off-tract improvements as between the applicant, other property owners and the Borough, or any one or more of the foregoing, shall be determined by the Planning Board, with the assistance of the appropriate Borough agencies, on the basis of the total cost of the off-tract improvements, the increase in market values of property affected and any other benefits conferred, the needs created by the application, population and land use projections for the general area of the applicant's property and other areas to be served by the off-tract improvements, the estimated time of construction of the off-tract improvements and the condition and periods of usefulness, which periods may be based upon the criteria of N.J.S.A. 40A:2-22. The following criteria may also be considered, as well as any other reasonable criteria which would aid in said determination:

(a)

Street, curb, gutter, sidewalk, shade tree, streetlight, street sign and traffic light improvements may also be based upon the anticipated increase of traffic generated by the application and the anticipated benefit thereto.

(b)

Drainage facilities may also be based upon or be determined by the drainage created by or affected by any particular land use, considering the percentage relationship between the acreage of the application and the acreage of the total drainage basin; the use of a particular site and the amount of area to be covered by impervious surfaces on the site itself; and the use, condition or status of the remaining area of the drainage basin.

Improvements to be construed at the sole expense of the applicant. In cases where a reasonable and necessary need for an off-tract improvement or improvements is necessitated or required by the proposed development application, and where no other property owners receive a special benefit thereby, the Board may require the applicant, as a condition of approval, at the applicant's expense, to provide for and construct such improvements as if such were on-tract improvements in the manner provided hereafter and as otherwise provided by law.

Payment of allocated costs; form. In the event that the improvement required shall be constructed as a general or a local improvement, the estimated cost of the off-tract improvement allocated to the applicant shall be deposited with the municipality in the form of cash. Said deposit shall be paid by the subdivider to the Borough Treasurer who shall provide a suitable depository therefor, and such funds shall be used only for the off-tract improvements for which they are deposited or shall be refunded to the subdivider as hereinafter set forth.