Article III Administration and Enforcement

Pursuant to N.J.S.A. 40:55D-23 et seq., there is hereby established a Planning Board consisting of nine members of the following four classes:

[Amended 10-12-2023 by Ord. No. NP2023-16]

Class I: the Mayor or his or her designee.

Class II: one of the officials of the Borough other than 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 both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV or alternate members.

Class III: a member of the Borough Council, to be appointed by it.

Class IV: six other citizens of the Borough, to be appointed by the Borough Council. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the 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 both a member of the Zoning Board of Adjustment 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.

Alternates. The Mayor shall also appoint two alternate members who shall meet the qualifications of Class IV members. Alternate members shall be designated by the Mayor at the time of appointment as "Alternate No. 1" and "Alternate No. 2."

Terms.

The term of the member composing Class I shall correspond with his official tenure. The terms of the members composing Class II and 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.

The term of a Class IV member who is also a member of the Zoning Board of Adjustment or 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.

The terms of all Class IV members first appointed pursuant to this chapter 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.

Alternate members; powers; terms of office.

The Mayor may appoint not more than two alternate members with the advice of the Borough Council. Alternate members shall meet the qualifications of Class IV members of nine-member Planning Boards. Alternate members shall be designated at the time of appointment by the Mayor as "Alternate No. 1" and "Alternate No. 2." The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. A vacancy occurring otherwise than by expiration of term shall be filled by the appointing authority for the unexpired term only.

No alternate member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. An alternate member may, after public hearing if he requests one, be removed by the governing body for cause.

Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.

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.

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.

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.

If the Planning Board lacks a quorum because any of its regular or alternate members are prohibited by N.J.S.A. 40:55D-23 or N.J.S.A. 40:55D-23.1 from acting on a matter due to the member's personal or financial interests therein, regular members of the Board of Adjustment shall be called upon to serve, for that matter only, as temporary members of the Planning Board, in order of seniority of continuous service to the Board of Adjustment, until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between regular members of equal seniority, the Chairman of the Board of Adjustment shall make the choice.[1]

Editor's Note: Added at time of codification of the Planning and Development Regulations.

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.

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.

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 also 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 of gifts or grants, the amount appropriated by the Borough Council for its use.

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:

To make and adopt from time to time and amend a Master Plan for the physical development of the municipality, including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the planning of the municipality, in accordance with the provisions of N.J.S.A. 40:55D-28.

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.

To grant exceptions from certain requirements for subdivision and site plan approval pursuant to N.J.S.A. 40:55D-51.

To approve conditional use applications in accordance with the provisions of this chapter and pursuant to N.J.S.A. 40:55D-67.

Prior to the adoption of a development regulation, revision, or amendment thereto, the Planning Board shall make and transmit to the Borough Council, within 35 days after referral, a report including recommendations concerning the proposed development regulation, revision, or amendment. 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 vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendations. 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.

To participate in the preparation and review of programs or plans required by state or federal law or regulations.

To assemble data on a continuing basis as part of a continuing planning process.

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.

Variances and permits.

When reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant to the same extent and subject to the same restrictions as the Zoning Board of Adjustment:

Variances pursuant to N.J.S.A. 40:55D-70c.

Direction pursuant to N.J.S.A. 40:55D-34 for issuance of a permit for a 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.

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.

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 or direction for issuance of a permit, as the case may be.

The developer may elect to submit a separate application requesting approval of 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 approval of the variance or direction of the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Planning Board. No such subsequent approvals shall be granted unless the 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 this chapter.

Review of capital projects pursuant to N.J.S.A. 40:55D.

To perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the Borough Council or other agencies or officers.

The Borough Council may by ordinance provide for the reference of any matter or class of matters to the Planning Board before final action thereon by a municipal body or municipal officer having final authority thereon. Such reference shall not extend the time for action by the referring body, whether or not the Planning Board has submitted its report. 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.

Time limits for action.

Minor subdivision. Minor subdivision approvals shall be granted or denied within 45 days of the date of submission of a complete application to the administrative officer or within such further time as may be consented to by the applicant. Approval of a minor subdivision shall expire 190 days from the date of Planning Board approval, unless, within such period, a plat in conformity with such approval and the provisions of the Map Filing Law, N.J.S.A. 46:26B-1 et seq., or a deed clearly describing the approved minor subdivision is filed by the developer with the county recording officer, the Borough Engineer and the Borough Tax Assessor. Any such plat or deed must be signed by the Chairman and Secretary of the Planning Board before it will be accepted for filing by the county recording officer.

Minor site plans. Minor site plan approvals shall be granted or denied within 45 days of the date of submission of a complete application to the administrative officer or within such further time as may be consented to by the applicant. Minor site plan approval shall confer upon the applicant the right that the general terms and conditions upon which minor site plan approval was granted shall not be changed for a period of two years.

Preliminary site plan approval. Upon the submission to the administrative officer of a complete application for a site plan which involves 10 acres of land or less, and 10 dwelling units or less, the Planning Board shall grant or deny preliminary approval within 45 days of the date of such submission or within such further time as may be consented to by the developer. Upon the submission of a complete application for a site plan which involves more than 10 acres, and more than 10 dwelling units, the Planning Board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the Planning Board shall be deemed to have granted preliminary approval of the site plan.

Preliminary major subdivision approval. Upon submission of a complete application to the administrative officer for a subdivision of 10 or fewer lots, the Planning Board shall grant or deny preliminary approval within 45 days of the date of such submission or within such further time as may be consented to by the developer. Upon submission of a complete application to the administrative officer for a subdivision of more than 10 lots, the Planning Board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the Planning Board shall be deemed to have granted preliminary approval of the major subdivision.

Effect of preliminary approval. Preliminary approval of a major subdivision or of a site plan shall, except as otherwise provided herein, confer upon the applicant the following rights for a three-year period from the date of the preliminary approval:

That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layouts and design standards for streets, curbs and sidewalks; lot size; yard dimensions and off-tract improvements; and, in the case of a site plan, any requirements peculiar to site plan approval pursuant to N.J.S.A. 40:55D-41, except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety.

That the applicant may submit for final approval on or before the expiration date of preliminary approval the whole or a section or sections of the preliminary subdivision plat or site plan, as the case may be.

That the applicant may apply for and the Planning Board may grant extensions on such preliminary approval for additional periods of at least one year, but not to exceed a total extension of two years, provided that if the design standards have been revised by ordinance, such revised standards shall govern.

In the case of a subdivision of or site plan for an area of 50 acres or more, the Planning Board may grant the rights referred to in Subsection L(5)(a), (b) and (c) of this section for such period of time, longer than three years, as shall be determined by the Planning Board to be reasonable, taking into consideration the number of dwelling units and nonresidential floor area permissible under preliminary approval; economic conditions; and the comprehensiveness of the development. The applicant may apply thereafter and the Planning Board may thereafter grant an extension to preliminary approval for such additional period of time as shall be determined by the Planning Board to be reasonable, taking into consideration the number of dwelling units and nonresidential floor area permissible under preliminary approval; and the potential number of dwelling units and nonresidential floor area permissible under preliminary approval; and the potential number of dwelling units and nonresidential floor area of the section or sections awaiting final approval; economic conditions; and the comprehensiveness of the development, provided that if the design standards have been revised, such revised standards shall govern.

Final approval.

Application for final subdivision or site plan approval shall be granted or denied within 45 days of submission of a complete application to the administrative officer or within such further time as may be consented to by the applicant.

Final approval of a major subdivision shall expire 95 days from the date of signing of the plat, unless, within such period, the plat shall have been duly filed by the developer with the county recording officer, the Borough Engineer and the Borough Tax Assessor. The Planning Board may, for good cause shown, extend the period for recording for an additional period not to exceed 190 days from the date of signing of the plat.

Effect of final approval.

The zoning requirements applicable to the preliminary approval first granted and all other rights conferred upon the developer at preliminary approval, whether conditionally or otherwise, shall not be changed for a period of two years after the date of final approval, provided that, in the case of major subdivision, the rights conferred by this section shall expire if the plat has not been duly recorded within the required time period. If the developer has followed the standards prescribed for final approval and, in the case of a subdivision, has duly recorded the plat, the Planning Board may extend such period of protection for extensions of one year, but not to exceed three extensions. Notwithstanding any other provisions of N.J.S.A. 40:55D-1 et seq., the granting of final approval terminates the time period of the rights conferred by preliminary approval for the section granted final approval.

In the case of a subdivision or site plan for a planned unit development or planned unit residential development or residential cluster of 50 acres or more or conventional subdivision or site plan for 150 acres or more, the Planning Board may grant rights for such period of time, longer than two years, as shall be determined by the Planning Board to be reasonable, taking into consideration the number of dwelling units and nonresidential floor area permissible under final approval; economic conditions; and the comprehensiveness of the development. The developer may apply for thereafter, and the Planning Board may thereafter grant, an extension of final approval for such additional period of time as shall be determined by the Planning Board to be reasonable, taking into consideration the number of dwelling units and nonresidential floor area permissible under final approval; the number of dwelling units and nonresidential floor area remaining to be developed; economic conditions; and the comprehensiveness of the development.

Combined preliminary and final major subdivision or site plan approval.

An applicant may request and the Planning Board may consent to accept an application for development for combined preliminary and final major subdivision or site plan approval, provided that:

The proposed development is not to be constructed in sections or stages.

The applicant pays the application fees and provides all submissions required for both preliminary and final applications.

Any notice of hearing requirements applicable to the preliminary plat stage are complied with.

The applicant consents to the time limits for action by the Board to be the greater of the limits set for either preliminary or final approval.

The Board is satisfied that the scope of the project is not so large nor so complex as to require the additional review time which separate applications would provide.

Any approval granted by the Planning Board on such combined application shall confer upon the applicant all the rights set forth in this section for final approval.

Conditional uses. The Planning Board shall grant or deny an application for a conditional use within 95 days of submission of a complete application by a developer to the administrative officer, or within such further time as may be consented to by the applicant. The review by the Planning Board of a conditional use may also include site plan review. The time period for approval by the Planning Board of conditional uses shall apply to such site plan review.

Review in lieu of Board of Adjustment. Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for relief pursuant to Subsection K(9) of this section (N.J.S.A. 40:55D-60), the Planning Board shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit a separate consecutive application, the aforesaid provision shall apply to the application for approval of the variance or direction for issuance of a permit. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter and N.J.S.A. 40:55D-1 et seq.

Failure to act. Failure of the Planning Board to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the Planning Board to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.

Required approval by County Planning Board. Whenever review or approval of the application by the Monmouth County Planning Board is required by N.J.S.A. 40:27-6.3 (County Planning Board Law), 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 Monmouth County Planning Board or approval by the Monmouth County Planning Board by its failure to report thereon within the required time period.

Advisory Committee. The Mayor may appoint one or more persons as a Citizens Advisory Committee 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.

Environmental Commission. Whenever the Environmental Commission, if and when an Environmental Commission is established in the Borough, 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.

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.

Referrals from Zoning Board of Adjustment.

The Planning Board shall receive and act on all referrals from the Zoning Board of Adjustment in a timely manner so that the Zoning Board will receive the advice of the Planning Board within 45 days of the referral.

The Planning Board shall review the material referred and may make recommendations to the Zoning Board of Adjustment in writing and/or at the public hearing on the application. The Planning Board's recommendations may contain the Planning Board's opinion as to the compatibility of the proposal to the Master Plan; applications which may have been or are currently being processed by the Planning Board for similar uses; land use, traffic and other data relevant to the application which the Planning Board has in its files; and what conditions, if any, the Planning Board would recommend be imposed on the applicant to improve compatibility with the Master Plan and this chapter should the Zoning Board of Adjustment grant the variance.

Continuance of hearing and voting eligibility. A member of the Planning Board 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 absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearing from which he was absent and certifies, in writing, to the Board that he has read such transcript or listened to such recording.

Informal review. At the request of the developer, the Planning Board shall grant an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for development. The amount of any fees for such an informal review shall be a credit toward fees for review of the application for development. The developer shall not be bound by any concept plan for which review is requested, and the Planning Board shall not be bound by any such review.

Notice of default. An applicant shall comply with the provisions of this section whenever the applicant wishes to claim approval of his application for development by reason of the failure of the municipal agency to grant or deny approval within the time period provided in the Municipal Land Use Law, P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.), or any supplement thereto.

The applicant shall provide notice of the default approval to the municipal agency and to all those entitled to notice by personal service or certified mail of the hearing on the application for development, but, for purposes of determining who is entitled to notice, the hearing on the application for development shall be deemed to have required public notice pursuant to Subsection a of Section 7.1 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-12).

The applicant shall arrange publication of a notice of the default approval in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.

§ 490-7.1 Historic Preservation Commission.

The applicant shall file an affidavit of proof of service and publication with the administrative officer, who, in the case of a minor subdivision or final approval of a major subdivision, shall be the officer who issues certificates pursuant to Section 35, Subsection b of Section 38, or Subsection c of Section 63 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-47; N.J.S.A. 40:55D-50; N.J.S.A. 40:55D-76), as the case may be.

[Added 2-8-2024 by Ord. No. 2024-03]

Establishment; members; terms; meetings; reports.

Establishment. The Historic Preservation Commission, referred to in this chapter as the "Commission," is established consistent with the Municipal Land Use Law; namely, at N.J.S.A. 40:55D-107 et seq.

Members. The Commission shall consist of seven regular members and two alternate members, all of whom shall be appointed by the Mayor. Members shall serve without compensation. At the time of appointment, at least one member shall be designated from each of the following classes:

Class A: a person who is knowledgeable in building design and construction or architectural history and who may reside outside the municipality.

Class B: a person who is knowledgeable or with a demonstrated interest in local history and who may reside outside the municipality.

Class C: citizens of the municipality who shall hold no other municipal office, position, or employment except for membership on the Planning Board. Class C members should have, at minimum, a demonstrated interest in history, historic preservation, or a related field.

Alternate members shall meet the qualifications of Class C members. At the time of appointment, alternate members shall be designated as "Alternate No. 1" and "Alternate No. 2."

Of the seven regular members, at least one less than a majority shall be of Classes A and B.

Terms. Members of the Commission first appointed under this section during 2024 shall have their terms staggered such that two members shall be appointed to a one-year term, two members shall be appointed to a two-year term, two members shall be appointed to a three-year term, and one member shall be appointed to a four-year term. Alternate No. 1 shall be appointed to a two-year term, and Alternate No. 2 shall be appointed to a one-year term. The first year of the terms of all initial appointments under this section shall expire on December 31, 2024. Thereafter, the term of a regular member subsequently appointed shall be four years and the term of an alternate member shall be two years. Notwithstanding any other provision herein, the term of any member common to the Commission and the Planning Board shall be for the term of membership on the Planning Board.

Vacancies. A vacancy occurring other than by expiration of term shall be filled for the unexpired term only.

Officers. Annually, the Commission shall elect a Chair and Vice Chair from its members and select a recording secretary, who may or may not be a member of the Commission or a municipal employee.

Meetings. The Commission shall establish and post in Borough Hall a regular schedule of meetings with a minimum of one meeting per month. Regular meetings shall be held as scheduled unless cancelled for lack of applications or work to process. Additional special meetings may be called by the Chair or Vice Chair, or on the request of any two of its members, when the regular meetings are inadequate to meet the needs of its business, to handle emergencies or to meet time constraints imposed by law.

Alternate member participation. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. If a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.

Council liaison. The Red Bank Borough Council shall designate a Council member to act as a liaison between the Commission and the Council.

Quorum/voting. Four members shall constitute a quorum. A majority vote of those present and voting shall govern and shall be sufficient to approve a permit recommendation on behalf of the Commission. Nonmember liaisons shall not be entitled to vote. A staff member of the Department of Planning and Zoning may attend meetings of the Commission and may participate in a nonvoting capacity.

Reports. The Commission shall prepare an annual report for the Borough Council, detailing all Commission activities, which shall be available to the public.

Scope and purpose.

The Commission shall report to the Planning Board and the Zoning Board of Adjustment on development applications for properties in historic districts, designated historic sites, and properties identified in the historic preservation element of the Master Plan.

The Commission shall review permits for exterior improvements for buildings and structures in a historic district or designated as a historic site and report to the Planning Board regarding the historic preservation aspects of the requested permit that are not approved by an application for development.

The purpose of the Commission is to implement the historic preservation element of the Master Plan, to provide guidance to property owners in achieving preservation of historic resources and to advance the following public purposes:

To preserve and protect historic resources; and

To maintain and develop an appropriate and harmonious setting for the historically and architecturally significant historic resources in the Borough.

Powers and responsibilities. The Commission shall have the following duties and responsibilities:

To identify, record and maintain a survey of buildings, structures, sites, objects, improvements, and districts of historical significance within the Borough.

To carry out such other advisory, educational, and informational functions to promote historic preservation.

To recommend to the Planning Board and Borough Council historic resources for inclusion in the New Jersey and National Registers of Historic Places and for local designation.

To make recommendations to the Planning Board regarding the historic preservation element of the Master Plan and on the implications for preservation of historic landmarks and historic districts of any other Master Plan elements.

To make recommendations to the Planning Board and Borough Council on the historic preservation implications of any proposed or adopted development ordinances.

To draft and recommend to the Planning Board and Borough Council ordinances or amendments to existing ordinances that would resolve any conflicts that may exist between the design standards of this article and the development regulations of the Borough.

To advise and assist Borough officers, employees, boards, and other bodies, including those at the county, state, and federal levels, on matters that have potential impacts on the historic resources in the Borough.

To advise the Planning Board and the Zoning Board on applications for development pursuant to N.J.S.A. 40:55D-110.

To report to the Planning Board regarding permits.

To advise the Planning Board and Borough Council on the relative merits of proposals involving the use of public funds for historic resources and to secure grants and assistance to support and monitor such projects.

To provide guidelines for rehabilitation and design criteria to owners of historic properties and for new construction established under this chapter.

To seek any benefits that may be available under the National Historic Preservation Act or any other state, county, or federal legislation, including, but not limited to, the benefits that flow to communities under the certified local government program for training, grant funding, and technical assistance.

Budget/finances.

Budget. The Borough Council shall make provision in its budget and appropriate funds for the expenses of the Commission. The Commission may employ, contract for, and fix the compensation of experts and other staff and services as it shall deem necessary. The Commission shall obtain its legal counsel from the municipal attorney at the rate of compensation determined by Borough Council, unless Council by appropriation provides for separate legal counsel for the Commission. Expenditures pursuant to this subsection shall not exceed, exclusive of gifts or grants, the amount appropriated by Borough Council for the Commission's use. If the Commission receives gifts or grants, they will be placed in a dedicated fund for the exclusive use of the Commission.

Finances. The Borough Council shall establish reasonable fees necessary to cover the expenses of administration and professional services to aid the Commission in its review of permits and reviews of applications for development. These fees are in addition to any other required under any portion of this chapter or any other applicable regulations.

Rules/procedures.

The Commission shall adopt written rules for the transaction of its business and for the consideration of applications for permits, for reports on applications for development and for designation and de-designation of historic districts and sites. Such rules shall not be inconsistent with the provisions of this chapter and shall include, but not be limited to, rules pertaining to all notices and hearings required.

To provide information to the public that is useful to the preservation and protection of historic resources and to provide the basis for consistency of policy, the administrative officer on behalf of the Commission shall maintain complete files and records. The Commission's files shall include, but are not limited to, data used in the classification of buildings, places and structures, minutes of Commission meetings, comments on reviewed applications and permits.

The Commission shall keep minutes and records of all meetings and proceedings, including voting records, attendance, resolutions, findings, determinations, decisions, and applications. All meetings shall be noticed and conducted in accordance with the Open Public Meetings Act.[1] Copies of all minutes shall be maintained in the office of the Commission and shall be delivered promptly to the Borough Clerk. A record of Commission proceedings shall be maintained and made available, but a formal verbatim record shall not be required.

Editor's Note: See N.J.S.A. 10:4-6 et seq.

Copies of records shall be made available to municipal bodies, agencies, and officials for their use.

When the Planning Board or Zoning Board of Adjustment refers an application for development to the Commission, the Commission shall provide a copy of its report to the referring board and shall provide a copy to the applicant.

The Zoning Officer shall maintain and display an up-to-date zoning map showing the historic districts, as well as a current listing of historic resources with addresses.

No member of the Commission shall be permitted to act on any matter in which he or she has, either directly or indirectly, any personal or financial interest. Unless a member resides or owns property within 200 feet of property that is the subject of an application, mere ownership or residence in a designated historic district or ownership of a designated historic site, or a non-designated site, shall not be deemed to be a personal or financial interest.

§ 490-8 Zoning Board of Adjustment.

[Amended by Ord. No. 1990-2; Ord. No. 2004-47]

Establishment. Pursuant to N.J.S.A. 40:55D-69 et seq., there is hereby established a Zoning Board of Adjustment consisting of seven regular members and not more than four alternate members, all of whom shall be residents of the Borough appointed by the Mayor.

[Amended 10-12-2023 by Ord. No. NP2023-16]

Terms and alternates.

The members of the Board of Adjustment shall continue until their respective terms expire. Thereafter, the term of each member shall be four years from January 1 of the year of their appointment. The terms of members first appointed under this subsection shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed, in the case of regular members, evenly over the first four years after their appointment and, in the case of alternate members, evenly over the first two years after their appointment, provided that the initial term of no regular member shall exceed four years and that the initial term of no alternate member shall exceed two years. Thereafter, the term of each regular member shall be four years, and the term of each alternate member shall be two years. The terms of not more than two alternates shall expire in any one year.

The Mayor may appoint not more than four alternate members who shall be designated at the time of their appointment as "Alternate No. 1," "Alternate No. 2," "Alternate No. 3" and "Alternate No. 4." Alternate members shall meet the same qualifications as regular members.

[Amended 10-12-2023 by Ord. No. NP2023-16]

Alternate members may participate in all matters, but may not vote except in the absence or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, alternate members shall vote in the order of their numerical designations.

Conflicts. No member of the Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. No member may hold elective office or position under the municipality.

Vacancies. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.

Removal. A member may, after public hearing if he requests one, be removed by the governing body for cause.

Officers. The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary who may or may not be a Board member or another municipal employee.

If the Board of Adjustment lacks a quorum because any of its regular or alternate members are prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the member's personal or financial interest therein, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary members of the Board of Adjustment. The Class IV members of the Planning Board shall be called upon to serve in order of seniority of continuous service to the Planning Board until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between Class IV members of equal seniority, the Chairman of the Planning Board shall make the choice.[1]

Editor's Note: Added at time of codification of the Planning and Development Regulations.

Board of Adjustment Attorney. There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint, fix the compensation of or agree upon the rate of compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than the Borough Attorney. The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.

Expenses, experts and staff. The governing body shall make provision in its budget and appropriate funds for the expenses of the Board of Adjustment. The Zoning Board of Adjustment may also employ or contract for and fix the compensation of such experts and other staff and services as it may deem necessary. The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.

Rules and regulations. The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.

Powers of the Zoning Board of Adjustment.

The Board of Adjustment shall have the power to:

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.

Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the Borough based on or made in the enforcement of the zoning provisions of this chapter or the Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken, specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the Board all papers constituting the record upon which the action appealed was taken. A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to an administrative officer.

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 Board of Adjustment 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 Board of Adjustment 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.

The Board of Adjustment 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.

Hear and decide requests for interpretation of the Zoning Map or this chapter or for decisions upon other special questions upon which such Board is authorized to pass by any zoning or official map ordinance in accordance with this chapter and N.J.S.A. 40:55D-1 et seq.

Bulk variance.

Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property; or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property; or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to N.J.S.A. 40:55D-46 would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of each property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship;

Where, in an application or appeal relating to a specific piece of property, the purpose of this chapter or the Municipal Land Use Law (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 this deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant N.J.S.A. 40:55D-62 through 40:55D-68; provided, however, that no variance from these departures enumerated in Subsection K(1)(d) of this section (N.J.S.A. 40:55D-70d) shall be granted under this subsection; and provided further that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to review a request for a variance pursuant to § 490-7K(9)(a) of this chapter (N.J.S.A. 40:55D-60a).

Use variance.

In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68 to permit a use or principal structure in a district restricted against such use or principal structure; an expansion of a nonconforming use; deviation from a specification or standard pursuant to Article IX, Conditional Uses, of this chapter and N.J.S.A. 40:55D-67 (Conditional uses; site plan review) pertaining solely to a conditional use; an increase in the permitted floor area ratio as defined in § 490-6, Definitions, of this chapter and N.J.S.A. 40:55D-4; an increase in the permitted density as defined in § 490-6, Definitions, of this chapter and N.J.S.A. 40:55D-4, 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 undersize lot or lots resulting from a minor subdivision. A variance under this subsection shall be granted only by an affirmative vote of at least five members.

No variance or other relief may be granted under the terms of this subsection or N.J.S.A. 40:55D-70 unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and this chapter. In respect of any airport hazard areas delineated under the Air Safety and Hazardous Zoning Act of 1983 (N.J.S.A. 6:1-80 et seq.), no variance or other relief may be granted under the terms of this subsection permitting the creation or establishment of a nonconforming use which would be prohibited under the standards promulgated pursuant to the Act except under issuance of a permit by the Commissioner of Transportation. An application under this subsection may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Board of Adjustment shall act.

The Board of Adjustment 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 Board of Adjustment of a variance pursuant to Subsection K(1)(d) of this section (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 Board of Adjustment. 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 this chapter. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in this chapter and according to N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to N.J.S.A. 40:55D-70d [Subsection K(1)(d) of this section] shall not be required.

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.

Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.

Referral. Any application to the Zoning Board of Adjustment may be referred by the Zoning Board to any appropriate person or agency, Shade Tree Commission and the Environmental Commission for consideration and report; provided, however, that such reference shall not extend the time within which the Zoning Board of Adjustment is required to act.

If such reports are not received by the Zoning Board of Adjustment within 45 days from the date or dates of such references, the Zoning Board of Adjustment may proceed to act without further delay and without reference to such reports should they be received after the expiration of such forty-five-day period.

When such a report is received from the Planning Board within 45 days, the Zoning Board of Adjustment shall take no action inconsistent therewith except by the affirmative vote of a majority of the fully authorized membership of the Zoning Board of Adjustment.

The report of the Shade Tree Commission, Environmental Commission or any other person or agency shall be advisory only.

Time for decision.

Whenever an application for development requests relief pursuant to Subsection K(1), (2), (3) or (4) of this section, the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter and N.J.S.A. 40:55D-1 et seq. Failure of the Board of Adjustment to act within the period described shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the Board of Adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval herein required and shall be so accepted by the county recording officer for purposes of filing subdivision plats.

§ 490-9 Provisions applicable to both Planning Board and Zoning Board of Adjustment.

Whenever review or approval of the application by the Monmouth County Planning Board is required by N.J.S.A. 40:27-6.3 (County Planning Board Law), in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the Board of Adjustment 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.

Expiration of variance. Any variance hereafter granted by the Board of Adjustment permitting the erection or alteration of any 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 said variance, or unless such development has actually been commenced, within a time period specified by the Board of Adjustment from the date of publication of the notice of the judgment or determination of the Board of Adjustment; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Board of Adjustment to the Borough Council, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding. Where subdivision or site plan approval is required, the period of time for commencement of the development specified by the Board of Adjustment shall be the same as the period of time for which other rights are conferred upon the applicant by such subdivision or site plan approval pursuant to the provisions of this chapter.

Continuance of hearing and voting eligibility. A member of the Board of Adjustment 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 absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearing from which he was absent and certifies, in writing, to the Board that he has read such transcript or listened to such recording.

Annual Zoning Ordinance report. The Board of Adjustment shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report on its findings on provisions of this chapter which were the subject of variance requests and its recommendations for Zoning Ordinance amendment or revision, if any. The Board of Adjustment shall send copies of the report and resolution to the governing body and Planning Board.

Meetings.

Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.

Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.

No action shall be taken at any meeting without a quorum being present.

All actions shall be taken by majority vote of a quorum except as otherwise required by any provision of N.J.S.A. 40:55D-1 et seq. Failure of a motion to receive the number of votes required to approve an application for development pursuant to the exceptional vote requirements of N.J.S.A. 40:55D-34 and 40:55D-69d shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.

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 Meetings Law, N.J.S.A. 10:4-6 et seq.

Minutes. Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney, the action taken by the 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 Board office. 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.

Hearings.

Rules. The Planning Board and Zoning Board of Adjustment shall hold a hearing on each application for development and 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. of this chapter.

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 municipal agency. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

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.

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 witnesses.

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

Records. The municipal agency shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The municipal agency shall furnish a duplicate recording, on request to any interested party, at the party's expense. The municipal agency, when furnishing a duplicate recording of the proceedings to an interested party at the party's expense, shall not charge such interested party more than the maximum permitted in N.J.S.A. 2B:7-4.[1]

Editor's Note: Amended at time of codification of the Planning and Development Regulations.

Absences and continued hearings. A member or alternate member of a municipal agency 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 recording of all of the hearings from which he or she was absent and certifies, in writing, to the Board that he or she has read such transcripts or listened to such recording.

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:

Public notice of a hearing on an application for development shall be given, except for minor subdivisions pursuant to N.J.S.A. 40:55D-47, minor site plans or final approval pursuant to N.J.S.A. 40:55D-50, and provided that public notice shall be given in the event that relief is requested pursuant to N.J.S.A. 40:55D-60 or 40:55D-76 as part of an application for development otherwise excepted herein from public notice. In addition, public notice shall be given by a public entity seeking to erect an outdoor advertising sign on land owned or controlled by a public entity as required pursuant N.J.S.A. 40:55D-31 or, if so provided by ordinance adopted pursuant to Subsection g of N.J.S.A. 40:55D-39, by a private entity seeking to erect an outdoor advertising sign on public land or on land owned by a private entity.[2]

Editor's Note: Amended at time of codification of the Planning and Development Regulations.

Public notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.

Notice of a hearing requiring public notice pursuant to this section 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 and whether located within or without the municipality in which the applicant's land is located. Such 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. This requirement shall be deemed satisfied by notice to the condominium association, in the case of any unit owner whose unit has a unit above or below it, or horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. 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 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 pursuant to Subsection D(3) of this section to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.

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.

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.

Notice shall be given by personal service or certified mail to the State Planning Commission of any hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the administrative officer pursuant to N.J.S.A. 40:55D-10b.[3]

Editor's Note: Amended at time of codification of the Planning and Development Regulations.

Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan under this act requiring public notice pursuant to Subsection D(1) of this section shall be given:[4]

In the case of a public utility, cable television company or local utility which possesses a right-of-way or easement within the municipality and which has registered with the municipality in accordance with Section 5 of P.L. 1991, c. 412 (N.J.S.A. 40:55D-12.1), by serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility or mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form;

In the case of a military facility which has registered with the municipality and which is situated within 3,000 feet in all directions of the property which is the subject of the hearing, by serving a copy of the notice on the military facility commander whose name appears on the registration form or mailing a copy thereof by certified mail to the military facility commander at the address shown on that form.

Editor's Note: Added at time of codification of the Planning and Development Regulations.

The applicant shall file an affidavit of proof of service with the Board holding the hearing on the application for development.

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.

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, or 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.

(13)

Notice pursuant to Subsection D(5), (6), (7), (8) and (9) of this section shall not be deemed to be required, unless public notice pursuant to Subsection D(1) and (2) of this section and notice pursuant to Subsection D(3) and (4) of this section are required.[5]

Editor's Note: Amended at time of codification of the Planning and Development Regulations.

Upon the written request of an applicant, the administrative officer of a municipality 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 Subsection D of this section. In addition, the administrative officer shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to Subsection D(9) of this section. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner, to any public utility, cable television company, or local utility or to any military facility commander not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name or $10, whichever is greater, may be charged for such list.[6]

Editor's Note: Amended at time of codification of the Planning and Development Regulations.

Decisions.

The municipal agency (Planning Board, Board of Adjustment or Borough Council) shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through a resolution adopted at a meeting held within the time period provided in N.J.S.A. 40:55D-1 et seq. for action by the municipal agency on the application for development; or a memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution; the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings, and publications required by Subsection F(2) and (3) below of this section (N.J.S.A. 40:55D-10). If the municipal agency fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorneys' fees, shall be assessed against the municipality. Failure of a motion to approve an application for development to receive the number of votes required for approval shall be deemed an action denying the application. The municipal agency may provide such written decision and findings and conclusions either on the date of the meeting at which the municipal agency takes action to grant or deny approval or, if the meeting at which such action is taken occurs within the final 45 days of the applicable time period for rendering a decision on the application for development, within 45 days of such meeting by the adoption of a resolution of memorialization setting forth the decision and the findings and conclusions of the municipal agency thereon. Any action resulting from the failure of a motion to approve an application shall be memorialized by resolution as provided above, notwithstanding the time at which such action occurs within the applicable time period for rendering a decision on the application. The adoption of a resolution of memorialization pursuant to this subsection shall not be construed to alter the applicable time period for rendering a decision on the application for development. Such resolution shall be adopted by a vote of a majority of the members of the municipal agency who voted for the action previously taken, and no other member shall vote thereon. The vote on such resolution shall be deemed to be a memorialization of an action of the municipal agency and not to be an action of the municipal agency, except that failure to adopt such a resolution within the forty-five-day period shall result in the approval of the application for development, notwithstanding any prior action taken thereon. Whenever a resolution of memorialization is adopted in accordance with this subsection, the date of such adoption shall constitute the date of the decision for purposes of the mailings, filings and publication required by Subsection F(2) and (3) of this section.

A copy of the decision shall be mailed by the administrative officer within 10 days of the date of decision to the applicant, or if represented then to his attorney, without separate charge, and to all who request a copy of the decision for a reasonable fee in an amount sufficient to cover the cost of such mailing. A copy of the decision shall also be filed by the municipal agency in the office of the administrative officer. The administrative officer shall make a copy of such filed decision available to any interested party for a reasonable fee in an amount sufficient to cover the cost of such copy and available for public inspection at his office during reasonable hours.

A brief notice of the decision shall be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the applicant, and proof of publication shall be submitted to the administrative officer. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision.

Such notice, as required by Subsection F(3) of this section, 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 administrative officer, whichever is later, or within such other appropriate period as may be determined by the municipal agency at the time of decision and, thereafter, from time to time, extended for proper cause shown by the applicant.

Failure of an applicant to publish as herein required shall render any approvals null and void.

Conditional approvals.

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 municipal agency 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 municipal agency shall approve such application conditioned on removal of such legal barrier to development.

In the event that development proposed by an application for development requires an approval of a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that the municipal agency 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 municipal agency is prevented or relieved from so acting by the operation of law.

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 municipal agency 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.

The municipal agency may impose such other conditions, including but not limited to those enumerated in Article VI of this chapter, as it deems appropriate.

In all cases, the municipal agency 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 municipal agency may, from time to time, grant upon the request of the applicant shall render any approvals null and void.

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.

Payment of taxes and water and sewer charges. Pursuant to the provisions of N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-65, every application for development submitted to the Planning Board or to the Zoning Board of Adjustment shall be accompanied by proof that no taxes or water and sewer charges or other 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 water and sewer charges or other assessments are delinquent on said property, any approvals or other relief granted by either 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.

Certification of complete application for development; certification time limits.

An application for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency when so certified by the municipal agency or its authorized committee or designee. In the event that the administrative officer, agency, committee or designee does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon expiration of the forty-five-day period for purposes of commencing the applicable time period, unless:

The application lacks information indicated on a checklist adopted by ordinance and provided to the applicant; and

The municipal agency or its authorized committee or designee has notified the applicant, in writing, of the deficiencies in the application within 45 days of submission of the application.

The applicant may request that one or more of the submission requirements be waived in the event the agency or its authorized committee shall grant or deny the request within 45 days. Nothing herein shall be construed as diminishing the applicant's obligation to prove in the application process that he is entitled to approval of the application. The municipal agency may subsequently require correction of any information found to be an error and submission of additional information not specified in this chapter or any revisions in the accompanying documents, as are reasonably necessary to make an informed decision as to whether the requirements necessary for approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such information of any revisions in the accompanying documents so required by the municipal agency.

§ 490-10 Fees and escrows.

[Amended by Ord. No. 1987-8; Ord. No. 1997-28; Ord. No. 2003-10]

Application fees.

Nonrefundable application fees. The developer shall, at the time of filing an application, pay a nonrefundable fee to the Borough of Red Bank by cash, certified check or bank draft. The fee to be paid shall be the sum of the fees for the component elements of the plat. Proposals requiring a combination of approvals, such as subdivision, site plan, and/or variance, shall pay a fee equal to the sum of the fee for each element.

[Amended 5-11-2009 by Ord. No. 2009-15]

Application for development permit:

For single- and two-family dwellings: $50.

Nonresidential applications: $100.

Residential/commercial applications for site plan/subdivision approval: $100.

Application fee: minor subdivision approval:

Each preliminary submission: $350.

Final plat: $200.

Application fee: major subdivision approval:

Each preliminary submission: $350.

Sketch plat (optional): $150, plus $25 per lot.

Preliminary plat: $300 per lot.

Final plat: $250 per lot.

Application fee: minor site plan approval:

Each preliminary submission: $175.

Final approval: $350.

Application fee: major site plan approval:

Each preliminary submission: $350.

Preliminary approval:

Residential, including hotel, motel, multifamily, planned residential and community residence, but not including sheltered care, nursing homes, or other medical/institutional uses, the sum of:

[i]

For each new dwelling unit, remodeled dwelling unit, parking space, reconstructed or repaved parking space: $50.

[ii]

For each ground sign eight feet or greater in height: $150.

[iii]

Other uses: the sum of $300, plus:

[A]

For each full 1,000 square feet of lot area: plus $50.

[B]

For each full 1,000 square feet of proposed new gross floor area: plus $50.

[C]

For each proposed new or additional parking space: plus $40.

NOTE: The fee for structured parking will be calculated on the basis of spaces (ii) or floor area (iii), whichever is greater.

[D]

For each full 1,000 square feet of remodeled or gross floor area: plus $50.

[E]

For each reconstructed, resurfaced or improved existing paved parking space: plus $30.

[F]

For each ground sign eight feet or greater in height: $200.

Final approval: 50% of the fees for preliminary approval enumerated above.

Variances:

Appeals:

Single- and/or two-family residential uses: $225.

[b]

Other: $350.

Interpretation of the zoning regulations or map: $350.

Hardship or bulk variance:

Single- and/or two-family residential uses: $190.

[b]

Other, including "C" variances for signs: $400 for first variance ($175 for each additional variance).

Use variance:

Proposed single- and/or two-family residential uses: $500.

[b]

Signs not permitted: $400.

[c]

Other, including conditional use variance: $1,000.

Building permit in conflict with Official Map or building permit for lot not related to a street: $500.

Conditional uses:

Signs: $200.

Other: $1,000.

NOTE: When a sign which is a conditional use is part of an application for another conditional use, the fee shall be $350 total.

Public hearing for those development applications which require public notice or hearing pursuant to § 490-9D of this chapter: $100.

Reproduction of records:

Duplication of meeting recordings: $5 per disk.

(j)

Change of zone request application:

Residential to other residential: $400.

Other: $1,000.

(k)

Environmental impact report:

For those development applications which require review of an EIR pursuant to § 490-90 of this chapter: $350.

(l)

Requests for administrative approval of changes: $250.

(m)

Requests for extension of time:

Minor subdivision and/or site plan: $200 (plus escrow).

Major subdivision and/or site plan: $250 (plus escrow).

Other applications for development: $50 (plus escrow).

Escrow funds required to be deposited with the Borough toward anticipated expenses for professional services to review applications for development, to review and prepare documents and to inspect developments under construction.

General.

In addition to the submission of nonrefundable application filing fees, as set forth hereinbefore, development applications which meet the criteria established herein shall be accompanied by a deposit of escrow funds in accordance with the provisions of this section.

Said escrow funds shall be utilized to cover the cost to the Borough of professional services rendered to the Borough for review of applications for development; review and preparation of documents; inspections of developments under construction; and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the Borough. Professional fees and salaries incurred in connection with the review of an application, plans, consultations, site inspections, written reports, resolution preparation, meeting attendance, general preparation, research, testimony, and other work performed by the Board Planner, Attorney, Borough Engineer, consulting engineer, Health Officer, and any other professional consulting services, such as a professional traffic consultant, may be required due to the nature of the application. Escrow funds deposited with the Borough as provided for in this subsection shall not be utilized to pay inspection costs required during the construction process.

Escrow amounts. Escrow funds in the amounts specified herein shall be required relative to the following applications:

[Amended 4-24-2006 by Ord. No. 2006-21; 5-11-2009 by Ord. No. 2009-15]

All applications for development: $500.

Sketch plat for major subdivision, minor subdivision, preliminary major subdivision approval for residential use:

		Escrow Amount
	1 to 2 lots or units	$3,000
	3 to 10 lots or units	$4,000
	11 to 25 lots or units	$5,000
	26 to 50 lots or units	$6,000
	51 to 100 lots or units	$10,000
	In excess of 100 lots or units	$30,000

Final major subdivision approval and final site plan approval for residential use:

		Escrow Amount
	1 to 10 lots or units	$1,500
	11 to 25 lots or units	$2,000
	26 to 50 lots or units	$3,000
	51 to 100 lots or units	$4,000
	In excess of 100 lots or units	$5,000

Nonresidential preliminary site plan approval inclusive of minor site plan:

		Escrow Amount
	Less than 1,000 square feet of building area	$1,500
	Less than 10,000 square feet of building area	$3,500
	10,001 to 50,000 square feet of building area	$6,000
	50,001 to 100,000 square feet of building area	$9,000
	In excess of 100,000 square feet of building area	$12,000

Nonresidential final site plan approval: 1/3 of the original escrow fee paid at the time of preliminary plan application.

Any application having more than one of the above categories shall deposit cumulative amounts.

[7]

Requests for extensions of time to commence development or file subdivision maps: $200.

[8]

Review of performance and maintenance guarantees. If a performance or maintenance guarantee or bond is required, $350 for review and preparation of resolutions accepting and releasing of same by the Borough Attorney.

[9]

Developer's agreements. If a developer's agreement is required by the Planning Board or Zoning Board of Adjustment, $3,500 for legal fees for the review of pertinent documents, meeting attendance, drafting and preparation of the developer's agreement and resolutions implementing same.

[10]

Applications requiring grading plan review: $500.

[11]

An additional reasonable escrow shall be required for sites requiring extraordinary review based upon the scale and complexity of the proposed development. For example, traffic-intensive or stormwater-intensive sites shall require additional reasonable escrow. This additional escrow shall be established by the administrative officer and Borough Engineer after consultation with the reviewing professionals.

Procedural requirements.

An applicant appearing initially before the Planning Board or Zoning Board of Adjustment shall deposit all escrow funds called for in the within section before said appearance. No conference, meeting or hearing with the applicant shall be held by the said Boards or any committees or professionals until all escrow funds and required fees have been deposited. The escrow sums must be in the form of cash, certified or bank cashier's check or money order. All deposits of escrow funds shall be made to the Borough administrative official and payable to the Borough of Red Bank.

Additional escrow funds may be required of the applicant when the escrow has been depleted to 25% of the original escrow amount. The Chief Financial Officer shall notify the Director of Planning and Zoning when escrow funds have been depleted to the aforementioned amount. The Board Secretary shall provide the applicant with a notice of insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall, within a twenty-one-day period from date of notification, post a deposit to the account in an amount to be agreed upon by the Borough and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.[1]

Editor's Note: Amended at time of codification of the Planning and Development Regulations.

Deposits received from any developer pursuant to this subsection shall be deposited 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 Borough 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. Escrow account deposits shall be placed in an interest-bearing account, and the same shall be administered in accordance with the requirements of N.J.S.A. 40:55D-53.1.

The Chief Financial Officer of the Borough shall make all of the payments to professionals for services rendered to the Borough or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. Such fees or charges shall be based upon a schedule established by resolution or resolutions as adopted from time to time by the governing body for professional services.

All disbursements to consulting professionals, Borough professionals and Borough employed professionals for services involved in processing an application which required escrow account deposits shall be charged against the escrow account.

Each payment charged to the escrow deposit for review of the applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional. Said voucher shall identify the personnel performing the service, the date, the services performed, the hours spent to not greater than one-quarter-hour increments, the hourly rate and the expenses incurred. All professionals shall submit vouchers to the Chief Financial Officer of the Borough on a monthly basis and in accordance with schedules and procedures established by the Chief Financial Officer of the Borough.

[7]

If the services are provided by a Borough employee, the employee shall prepare and submit to the Chief Financial Officer a statement containing the same information as required on the voucher, on a monthly basis.

[8]

The professional shall send an informational copy of all vouchers or statements submitted to the Chief Financial Officer of the Borough simultaneously to the applicant.

[9]

The Chief Financial Officer shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements, and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis if monthly charges are $1,000 or less or on a monthly basis if monthly charges exceed $1,000.

[10]

The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements. The Borough shall not bill the applicant or charge an escrow account or deposit for any Borough clerical or administrative functions, overhead expenses, meeting room charges, or any other costs and expenses, except as provided for in this chapter, nor shall a Borough professional add any such charges to his bill.

[11]

A professional shall not review items which are subject to approval by any state agency and not under municipal jurisdiction except to the extent that consultation with a state agency is necessary due to the effect of state approval on the subdivision or site plan.

[12]

All professional charges for review of an application for development, review and preparation of documents, or inspection of improvements shall be reasonable and necessary, given the status and progress of the application or construction. Review fees shall be charged only in connection with an application for development presently pending before the approving authority or upon review of compliance with conditions of approval, or review of requests for modifications or amendment made by the applicant.

[13]

If the Borough retains a different professional or consultant in the place of the professional originally responsible for development application review or inspection of improvements, the Borough shall be responsible for all time and expenses of the new professional to become familiar with the application or project and shall not bill the applicant or charge the deposit or the escrow account for any such services.

[14]

If the salary, staff support and overhead for a Borough professional are provided by the municipality, the charge shall not exceed 200% of the sum of the product resulting from multiplying the hourly base salary of the professional by the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the municipality when fees are not reimbursed or otherwise imposed on applicants or developers.

Inspection fees.

Inspection fees shall be charged only for actual work shown on a subdivision or site plan required by the Borough. Professionals inspecting improvements under construction shall charge only for inspections that are reasonably necessary to check the progress and quality of the work, and such inspections shall be reasonably based on the approved development plans and documents.

The developer shall be required to deposit funds into an escrow account for the inspection fees pursuant to Subsection C of this section.

The amount of monies to be deposited with the Borough shall be as set forth in Subsection B of this section.

The terms and provisions of this Subsection A(2)(d), Inspection fees, shall be retroactive to January 1, 1997, except that it shall not apply to those inspection fees paid to the Borough under the terms and provisions of a land use developer's agreement, if any, whereby it was agreed by the developer that said inspection fees would be treated as a flat, nonescrow inspection fee.

Refund of monies in escrow account. The following closeout and refund procedure shall apply to all deposits and escrow accounts established under the provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., and shall commence after the Borough has granted final approval and signed the subdivision plat or site plan, in the case of application review escrows and deposits, or after the improvements have been approved, in the case of improvement inspection escrows and deposits, and the Borough has further determined that there is no longer any need to retain any escrow account:

The applicant shall send written notice by certified mail to the Director, Planning and Zoning, as well as to the relevant Borough professional, that the application or the improvements, as the case may be, are completed.[2]

Editor's Note: Amended at time of codification of the Planning and Development Regulations.

After receipt of such notice, the professional shall render a final bill to the Chief Financial Officer within 30 days and shall send a copy simultaneously to the applicant.

The Chief Financial Officer shall render a written final accounting to the applicant on the uses to which the escrow account deposit was put within 45 days after the receipt of the final bill.

Any balances remaining in the deposit or escrow account, including interest in accordance with the requirements of N.J.S.A. 40:55D-53.1, shall be refunded to the developer along with the final accounting.

In the event that an applicant requests a refund of any balances remaining in a deposit or escrow account and it is necessary for the Borough to provide additional professional services or inspection services relating to that development application, it will be necessary for developer to post a new deposit or escrow amount pursuant to this chapter as if it were a new development application.

The Borough 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 developer and shall be refunded to him by the Borough 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 Borough may retain for administrative expenses a sum equivalent to not more than 33 1/3% of that entire amount, which shall be in lieu of all other administrative and custodial expenses pertaining to the escrow account.

Dispute of charges.

An applicant shall notify, in writing, the Borough Council, with copies to the Chief Financial Officer, the approving authority and the professional, whenever the applicant disputes the charges made by a professional for services rendered to the Borough in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the provisions of P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.).

The governing body or its designee shall, within a twenty-one-day period, attempt to remediate any disputed charges. In the event that the matter is not resolved to the satisfaction of the applicant, the applicant may appeal, in writing, to the County Construction Board of Appeals established under Section 9 of P.L. 1975, c. 217 (N.J.S.A. 52:27D-127).

An applicant filing an appeal shall simultaneously send a copy to the Borough approving agency and any professional whose charge is the subject of the appeal.

Any appeal shall be filed within 45 days from receipt of the informational copy of the professional's voucher, except that, if the professional has not supplied the applicant with the informational copy of the voucher, then the applicant shall file his appeal within 60 days from receipt of the municipal statement of activity against the deposit or escrow account.

During the pendency of any appeal, the municipality or approving authority shall continue to process, hear and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance or maintenance guarantees, the issuance of construction permits or certificates of occupancy, or any other approval or permit because an appeal has been filed or is pending under this subsection. The Chief Financial Officer of the municipality may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment, the Chief Financial Officer of the municipality shall reimburse the deposit or escrow account in the amount of any such disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment, the Chief Financial Officer of the municipality shall reimburse the deposit or escrow amount in the amount of any such disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment to a professional or consultant who is not an employee of the municipality, the professional or consultant shall reimburse the municipality in the amount of any such disallowed charge.

Inspection fees.

[Amended 4-24-2019 by Ord. No. 2019-15]

Inspection fees as per procedures prescribed by the Department of Planning and Zoning consistent with the Municipal Land Use Law (N.J.S.A. 40:55D-53).

Required inspection fees shall be paid prior to the issuance of a development permit.

Additional inspection fee escrow for excess Borough expenses.

If the municipal agency determines that a proposed development involves unusual or complicated aspects which could result in expenses to the Borough in excess of the inspection fees set forth above, the municipal agency may, as a condition of final approval, require the developer to provide an additional escrow deposit. Expenses in excess of the normal inspection fees may be deducted from the escrow deposit. Any balance shall be returned to the applicant upon release of performance guarantees and/or issuance of a final certificate of occupancy. In determining the amount of any escrow required, the municipal agency may consider the duration and size of the project; unusual design aspects; the degree and extent of municipal inspection required; and the extent of conformity to normal municipal design standards.

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 Municipal 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 Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Municipal Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

Easements and other rights in Borough-owned real property.

[Added 10-23-2006 by Ord. No. 2006-50; amended 5-11-2009 by Ord. No. 2009-15]

Except as otherwise permitted by the Local Lands and Building Law, N.J.S.A. 40A:12-1 et seq., the following minimum prices shall be established for easements, licenses, and any other encroachments upon or encumbrances of Borough-owned lands or rights-of-way:

Access easements: $3,500.

Major encroachments (physical encroachments or encumbrances of more than 225 square feet): $2,000.

Minor encroachments (physical encroachments or encumbrances of 225 square feet or less): $1,500.

Utility or drainage easements: $1,000.

The Borough shall have the right to increase these minimum bids, at its discretion, upon a finding that special circumstances exist warranting an increase in the aforementioned minimum bids.

Nothing in this section shall otherwise restrict, or limit, the Borough from exercising any other rights or powers granted to it by the Local Lands and Buildings Law, N.J.S.A. 40A:12-1 et seq.

Revised plats. Any proposed revisions to a plat, including all supporting maps and documents, previously approved by the Planning Board or Board of Adjustment, which approval is still in effect, shall require submission of a revised plat and payment of fees in accordance with the following:

Where changes in the plat are requested by the municipal agency or Borough Engineer, no fees need be paid, and only sufficient copies of the plat incorporating the changes as may be necessary for distribution need be submitted.

Where there are only minor changes in the plat proposed by the applicant or required by another governmental agency, where approval was a condition of the Planning Board or Board of Adjustment approval, which do not involve any additional building or parking or significant change in the design of the site or subdivision, an application fee of $350 will be required along with sufficient copies of the plat incorporating the changes as may be necessary for distribution.

[Amended 5-11-2009 by Ord. No. 2009-15]

Where there are changes in the plat proposed by the applicant, or required by another governmental agency whose approval was a condition of the municipal agency approval, which involve additional building or parking or a significant change in the design of the site or subdivision, an application fee equal to 1/2 the fee required for the initial submission will be required along with sufficient copies of the plat incorporating the changes as may be necessary for distribution.

Where the proposed changes involve a change in use and/or major alteration of the design concepts of the plat approved by the municipal agency, it shall be considered a new application and shall require the full payment of fees as set forth in this section for new applications for development.

Where revisions in the plat only involve additional information required as a condition of a previous approval, no additional fees shall be required.

Request for reapproval or extension of time:

[Amended 5-11-2009 by Ord. No. 2009-15]

Minor subdivisions and site plans: $225.

Major subdivisions and site plans: $250.

Other applications for development: $75.

Tax Map revision fees.

When an application for development requires revisions to the Borough's Tax Maps, which may include costs in regard to reviewing deeds and revising said maps in addition to costs incurred by the Borough Assessor's office in establishing additional line items, the following fees will be paid prior to or as a condition of final approval or issuance of a development permit:

Number of Lots or Units	Tax Map Revision Fee
Less than 20	$60/lot or unit ($200 minimum)
20 but less than 100	$1,200, plus $45/lot or unit in excess of 20
100 but less than 200	$4,800, plus $35/lot or unit in excess of 100
200 but less than 400	$8,300, plus $30/lot or unit in excess of 200

Where an applicant sells or leases property necessitating subsequent revisions to the Borough's Tax Maps, the applicant or present owner (if different from the applicant) shall be responsible for additional Tax Map revisions. Subsequent fees shall be the same as above and paid prior to the issuance of a certificate of occupancy for each new unit.

Application for a certificate of appropriateness from the Historic Preservation Commission: $50.

[Added 6-13-2018 by Ord. No. 2018-15]

Development impact fees.

[Added 8-18-2021 by Ord. No. 2021-15]

The purpose of this article is to establish regulations pursuant to which a developer, as a condition for approval of a subdivision and/or site plan, shall pay a pro rata share of the cost of providing reasonable and necessary street improvements and water, sewerage and drainage facilities, and easements therefor, and provide for open space and park improvements, located off tract but necessitated or required by construction or improvements within the subdivision or development.

To the fullest extent permitted by New Jersey law, presently or as may be amended and supplemented from time to time, and whenever the Borough can fairly and reasonably establish, based upon appropriate traffic and utility service analyses, plans or studies and open space or park improvement plans, the proportionate or pro rata amount of the cost of the aforementioned facilities that shall be borne by each developer or owner within a related and common area as provided for herein, the developer or owner shall pay said cost as a condition of approval up to the following amounts:

Each square foot of new construction of warehouse space shall be assessed an impact fee of $3.25.

Each square foot of new construction of retail, commercial and/or other industrial space shall be assessed an impact fee of $4.25.

Each square foot of new construction of residential space shall be assessed an impact fee of $3.

Construction of new tanks above or below grade of any gallon size shall be assessed an impact fee of $0.10 per gallon. Single-family and multifamily homes shall be exempt.

The foregoing amounts shall apply to each square foot of lot coverage only and shall not be required for additions to existing owner-occupied residential dwellings unless said addition increases the total square footage of lot coverage by the dwelling by more than 50%.

Where a developer or owner pays under protest the amount determined to be his/her/its pro rata share as provided for herein, he/she/it shall institute legal action within one year of such payment in order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount.

The provisions of this article notwithstanding, nothing herein shall prevent a developer or owner from voluntarily agreeing to pay, and the Borough agreeing to accept, an amount, either by way of direct contribution or in-kind services, that the developer or owner agrees reflects the pro rata or proportionate share of the cost of providing reasonable and necessary off-tract improvements or facilities required by the construction or improvements to be approved pursuant to a respective development application. In such a case, the Borough and developer or owner may enter into a developer's agreement that provides for said direct payment or in-kind services in lieu of any contribution provided for pursuant to the provisions of this article. In addition, the Borough may waive the requirements of this article for any duly authorized redevelopment project.

§ 490-11 Enforcement.

The duty of administering and enforcing the provisions of this chapter is hereby conferred upon the administrative officer or his designee, who shall have such powers as are conferred by this chapter and as reasonably may be implied. The officer shall be appointed by the Borough Council. 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 or his designee shall have the right to enter any building or premises during the daytime, or other normal business hours of the premises, in the course of performing these duties.

§ 490-12 Certificates and permits.

[Amended by Ord. No. 1989-10]

Development permit.

Development permits shall hereafter be secured from the administrative officer prior to:

Filing of (or recording a deed of) a subdivision application or resubdivision of any land;

Application for and/or issuance of any construction permit except a permit for minor work (as defined by N.J.A.C. 5:23-2.17A);

The erection, construction, alteration, repair, remodeling, conversion, removal or destruction of any building or structure;

Application for and/or issuance of any permit for a new or expanded or relocated sign;

Application for and/or issuance of any permit for erection of a fence;

Any change in use or occupancy (as herein defined) of any building, structure or land;

Any alteration in the natural condition of any parcel of land;

Any use of any portion of any parcel of land for any activity regulated by this chapter;

The construction of any site improvement either above or below ground;

(j)

The issuance of any certificate of occupancy where no building permit was previously required.

(k)

Any leasing of parking spaces to off-site uses.

[Added 7-18-2018 by Ord. No. 2018-19]

Prior to issuance of a development permit, the applicant shall have, where applicable, secured other required permits, including, but not limited to:

Access permit from the New Jersey Department of Transportation and/or Monmouth County Engineering Department.

Drainage permits from the New Jersey Department of Transportation.

Stream encroachment permit from the New Jersey Department of Environmental Protection.

Coastal Area Facility Review Act (CAFRA) permit from the New Jersey Department of Environmental Protection.

Wetlands permit from the New Jersey Department of Environmental Protection.

Riparian construction permit from the New Jersey Department of Environmental Protection.

Required permits from the United States Army Corps of Engineers for work within navigable waterways.

Sewerage and/or industrial waste treatment permit from the New Jersey Department of Environmental Protection.

Land disturbance permit from the Freehold Area Soil Conservation District.

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 municipal agency approval.

Certificates as to approval of subdivision of land.

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.

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.

Each such certificate shall be designated as "certificate as to approval of subdivision of land" and shall certify:

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.

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.

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.

The administrative officer shall be entitled to demand and receive for such certificate issued by him a reasonable fee not in excess of those provided in N.J.S.A. 54:5-14 and 54:5-15. The fees so collected by such official shall be paid by him to the municipality.

Any person who shall acquire for a valuable consideration an interest in the lands covered by any such certificate of approval of a subdivision in reliance upon the information 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.

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.

Any such application addressed to the Borough Clerk shall be deemed to be addressed to the proper designated officer, and the Borough shall be bound thereby to the same extent as though the same was addressed to the designated official.

Building permit. No building or structure shall be erected, restored, added to, or structurally altered until a permit therefor has been issued by the Construction Official. All applications for such permits shall be in accordance with the requirements of the Uniform Construction Code. No building permit shall be issued unless the applicant shall have first secured a development permit.

Certificate of occupancy.

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.

New uses.

No building, structure or land shall be occupied or used until such time as a certificate of occupancy is issued by the Construction Official.

Such certificate shall be issued upon application by the owner, prospective occupant, or purchaser only after the Construction Official 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 and other codes and ordinances affecting construction and occupancy.

A temporary certificate of occupancy may be issued pursuant to the provisions of this chapter, including specifically but not limited to § 490-76 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.

Existing uses at the time of passage of this chapter. Upon written request from the owner, tenant, occupant, or purchaser under contract, the Construction Official, after inspection, shall issue an occupancy permit for a use legally existing at the time this chapter is made effective, certifying the extent and kind of use and whether any such existing use conforms with the provisions of this chapter.

Change of use. Whenever there occurs a change in the occupancy or use (as herein defined) of a nonresidential building, structure or land, a new certificate of occupancy shall be applied for, to ensure compliance with all applicable codes and ordinances. The Construction Official may issue such certificate if the administrative officer determines that such change in occupancy or use is not a change in use as herein defined and determines, therefore, that a development permit is not required, provided that the applicant has met the requirements of other applicable regulations.

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.

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.

Soil erosion and sediment control plan certification. 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.

§ 490-13 Records.

It shall be the duty of the administrative officer 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 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.

§ 490-14 Interpretation.

In the application and interpretation of this chapter, 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 this chapter are at variance with the requirements of any other lawfully adopted rules, regulations or ordinances, the most restrictive or that imposing the higher standards shall govern.

§ 490-15 Effect of other provisions.

Any portions of other ordinances which contain provisions inconsistent with this chapter are hereby repealed to the extent of such inconsistency, except as provided by § 490-28 of this chapter, and except that any building permit, variance, special 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.

§ 490-16 Violations and penalties.

For any and every violation of the provisions of this chapter, the applicant, subdivider, developer, owner, general agent or contractor of a building or premises where such violation has been committed or shall exist and the owner, general agent, contractor, lessee or tenant of any part of a building or premises in which part such violation has been committed or shall exist and the general agent, architect, building contractor or any other person who commits, takes part or assists in such violation or who maintains any building or premises in which any such violation shall exist shall, for each and every day that violation continues, be subject to the penalties set forth in Chapter 1, Article II, General Penalty.[1]

Editor's Note: Amended at time of codification of the Planning and Development Regulations. Additionally, the codification of the ordinances of the Borough of Red Bank is currently in process. For the most recent penalty provisions, see Ord. No. 1987-8, as amended by Ord. No. 2004-38 and Ord. No. 2006-26, on file in the Borough offices.

Prohibited acts.

It shall be a violation of the provisions of this chapter to:

Engage in any of the activities referred to in § 490-57 of this chapter prior to issuance of a development permit.

Engage in any of the activities referred to in § 490-29A or B of this chapter prior to issuance of a development permit.[2]

Editor's Note: Original § 25-3.10b3, which immediately followed this subsection, was repealed at time of codification of the Planning and Development Regulations.

Engage in any of the activities referred to in § 490-12A(1)(a), (b), (c), (f), (g), (h) or (i) and § 490-104B(1)(a) of this chapter prior to issuance of a development permit.

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 municipal agency.

Fail to observe the intent of the general objectives or the general standards under the provisions of § 490-104 of this chapter.

Fail to observe the standards of § 490-75 of this chapter during construction.

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 municipal agency or of the development permit.

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 municipal agency or of the development permit.

After completion of a development, fail to operate and maintain the site in conformance with the approved plans, any condition of resolution of the municipal agency or of the development permit and/or any of the provisions or applicable design standards set forth in Articles V, VII and VIII of this chapter.

(j)

Pave any portion of any lot that is not used as a permitted and approved driveway or parking area.

[Added 8-21-2019 by Ord. No. 2019-35]

The above shall not be construed to be an exhaustive list of those activities or actions or omissions which constitute violations of this chapter. Other activities prohibited by or failure to engage in other activities required by this chapter shall also be considered violations.

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 disposition so made may be deemed a separate violation.

Civil action.

In addition to the foregoing, the municipality may institute and maintain a civil action:

For injunctive relief; and

To set aside and invalidate any conveyance made pursuant to such a contract of sale, provided a certificate has not been issued in accordance with § 490-12B of this chapter.

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 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.

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 municipal agency 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 has not been obtained.

If the developer or agent of the developer shall, after notification by certified mail from the Engineer or the administrative officer or his designee to cease the construction of improvements or cease the use of or lack of use of the 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 Engineer or the administrative officer or his designee, then any such developer or agent of such developer shall be subject to the penalties set forth in Chapter 1, Article II, General Penalty.[3] Each and every day that a developer or agent of a developer operates in violation of this chapter after issuance of a cessation order by the Engineer or the administrative officer or his designee shall be considered a separate and specific violation.

[Amended 12-5-2012 by Ord. No. 2012-23]

§ 490-19 Effect on pending and new applications.

Editor's Note: The codification of the ordinances of the Borough of Red Bank is currently in process. For the most recent penalty provisions, see Ord. No. 1987-8, as amended by Ord. No. 2004-38 and Ord. No. 2006-26, on file in the Borough offices.

§ 490-17 Amendments.

All amendments to this chapter and to the Zoning Map, 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.

§ 490-18 Severability.

If any section, paragraph, subdivision, clause or provision of this chapter shall be adjudged invalid, such adjudication shall apply only to the section, paragraph, subdivision, clause or provision so adjudged, and the remainder of this chapter shall be deemed valid and effective.

After the effective date of the ordinance adopting this chapter, all new applications for development shall be subject to the provisions of this chapter. Within 45 days of submission of any application for development, the administrative officer shall notify the developer in writing if an application for development is found to be incomplete or it shall be deemed to be properly submitted and constitute a complete application 45 days after the date of submission. If a developer is notified that an application for development is incomplete, the administrative officer shall further notify the developer within 45 days of submission of all the additional plans and supporting documentation requested if an application for development is still found to be incomplete, or it shall be deemed to be properly submitted and constitute a complete application 45 days after submission of all the additional plans and supporting documentation requested.

All applications for development filed prior to the effective date of this chapter may be continued, subject to the following:

The time limits for approval by the municipal agency set forth within this chapter shall not apply unless the developer shall notify the municipal agency in writing that he desires the application to be considered within such time limits. Such letter of notification from the developer shall constitute the filing of a new application for development subject to the provisions of Subsection A of this section and all other provisions of this chapter.

If the developer does not notify the municipal agency that he desires the application for development to be considered within the time limits set forth in this chapter, such application for development shall be processed and acted upon pursuant to the procedures heretofore in effect at the time of such application.