Every municipal agency shall adopt and may amend
reasonable rules and regulations, not inconsistent with this chapter,
for the administration of its functions, powers and duties and shall
furnish a copy thereof to any person upon request and may charge a
reasonable fee for such copy. Copies of all such rules and regulations
and amendments thereto shall be maintained in the office of the Township
Clerk.
A.
Every municipal agency shall by its rules fix the time and place for holding its regular meetings for business authorized to be conducted by such agency. Regular meetings of the municipal agency shall be scheduled not less than once a month and shall be held as scheduled unless canceled for lack of applications for development to process. The municipal agency may hold special meetings, at the call of the Chairman or on the request of any two of its members, which shall be held on notice to its members and the public in accordance with municipal regulations. No action shall be taken at any meeting without a quorum's being present. All actions shall be taken by a majority vote of the members present at the meeting, except as otherwise required by §§ 165-9, 165-18A and B and 165-26A of this chapter and Sections 23, 25, 49 and 50 of P.L. 1975, c. 291.[1] Failure of a motion to receive the number of votes required
to approve an application pursuant to the exceptional vote requirements
of Section 25 of P.L. 1975, c. 291,[2] or § 165-26A of this chapter shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for the governing body.
[Amended 7-23-1984 by Ord. No. 245-84]
B.
All regular meetings and all special meetings shall
be open to the public. Notice of all such meetings shall be given
in accordance with municipal regulations. An executive session for
the purpose of discussing and studying any matters to come before
the agency shall not be deemed a regular or special meeting within
the meaning of this chapter.
C.
Minutes of every regular or special meeting shall
be kept and shall include the names of persons appearing and addressing
the municipal agency and of the persons appearing by attorney, the
action taken by the municipal agency, the findings, if any, made by
it and reasons therefor. The minutes shall thereafter be made available
for public inspection during normal business hours at the office of
the administrative officer. 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
for this use.
A.
The Planning Board or the Board of Adjustment, as
the case may be, shall hold a hearing on each application for development,
except for concept plan review. The Planning Board shall also hold
a hearing on the adoption, revision or amendment of a Master Plan.
The governing body shall hold a hearing on the adoption or amendment
of a development regulation, an Official Map or a capital improvements
program.
(1)
The municipal agency shall make the rules governing
such hearings. 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 administrative officer. The applicant
may produce other documents, records or testimony at the hearing to
substantiate or clarify or supplement the previously filed maps and
documents.
(2)
The officer presiding at the hearing, or such person
as he may designate, shall have the 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, P.L. 1958, c. 38 (N.J.S.A. 2A:67A-1 et seq.), shall apply.
(3)
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.
(4)
Technical rules of evidence shall not be applicable
to the hearing, but the agency may exclude irrelevant, immaterial
or unduly repetitious evidence.
(5)
The municipal agency shall provide for the verbatim
recording of the proceedings by either stenographic, mechanical or
electronic means. The municipal agency shall furnish a transcript,
or duplicate recording in lieu thereof, on request to any interested
party at his expense. Said transcript shall be certified in writing
by the transcriber to be accurate.
(6)
Findings and conclusions.
[Amended 7-23-1984 by Ord. No. 245-84]
(a)
The municipal agency 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:
[1]
A resolution adopted at a meeting held within
the time period provided in the act for action by the municipal agency
on the application for development; or
[2]
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, and the vote of a majority of such members
present at the meeting at which the resolution is presented for adoption
shall be sufficient to adopt the resolution.
(b)
An action pursuant to § 165-7A of this chapter (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 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 A(7) and (8) of this section. 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 attorney's fees, shall be assessed against the municipality.
(7)
A copy of the decision shall be mailed by the municipal
agency 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. A
copy of the decision shall also be filed by the municipal agency in
the office of the Township Clerk. The Township Clerk shall make a
copy of such filed decision available to any interested party for
a reasonable fee and available for public inspection at his office
during reasonable hours.
(8)
A brief notice of the decision shall be published
in the official newspaper of the municipality, if there is one, or
in a newspaper of general circulation in the municipality. Such publication
shall be arranged by the Township Clerk, provided that nothing in
this chapter shall be construed as preventing the applicant from arranging
such publication if he so desires. The municipality may make a reasonable
charge for its publication. The period of time in which an appeal
of the decision may be made shall run from the first publication of
the decision, whether arranged by the municipality or the applicant.
B.
Notice of hearing on application for development or adoption of Master Plan. Notices pursuant to Subsection B(1) and (2) below shall state the date, time and place of the hearing, the nature of the matters to be considered and, in the case of notices pursuant to Subsection B(1) below, an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Municipal Tax Assessor's office and the location and times at which any maps and documents for which approval is sought are available pursuant to Subsection A(1) herein above.
(1)
Notice of applications. Notice pursuant to Subsection B(1)(a), (b), (d), (e), (f) and (g) of this section shall be given by the applicant. Said notice shall be given at least 10 days prior to the date of the hearing.
(a)
Public notice of a hearing on an application
for development shall be given, except for minor subdivisions, minor
site plans and final approval, by publication in the official newspaper
of the municipality, if there is one, or in a newspaper of general
circulation in the municipality.
(b)
Notice of a hearing requiring public notice pursuant to Subsection B(1) of this section shall be given to the owners of all real property, as shown on the current tax duplicate, located in the state and within 200 feet in all directions of the property which is the subject of such hearing, provided that this requirement shall be deemed satisfied by notice to the 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 shall be given by serving a copy thereof on the property owner, as shown on said current tax duplicate, or his agency in charge of the property or by mailing a copy thereof by certified mail to the property owner at his address, as shown on said current tax duplicate. Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 300 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.
(c)
Upon the written request of an applicant, the Township Clerk shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to Subsection B(1)(b) 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 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.
(d)
Notice of hearings on applications for development
involving property located within 200 feet of an adjoining municipality
shall be given by personal service or certified mail to the Clerk
of such municipality.
(e)
Notice shall be given by personal service or
certified mail to the County Planning Board of any hearing on an application
for development.
(f)
Notice shall be given by personal service or
certified mail to the Commissioner of Transportation of a hearing
on an application for development of property adjacent to a state
highway.
(g)
Notice shall be given by personal service or certified mail to the Director of the Division of State and Regional Planning in the Department of Community Affairs of a 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 Municipal Clerk pursuant to Subsection A(1) herein above.
(h)
The applicant shall file an affidavit of proof
of services with the municipal agency holding the hearing on the application
for development in the event that the applicant is required to give
notice pursuant to this section.
(2)
Notice concerning Master Plan. The Planning Board
shall give:
(a)
Public notice of a hearing on the adoption,
revision or amendment of the Master Plan. Such notice shall be given
by publication in the official newspaper of the municipality, if there
is one, or in a newspaper of general circulation in the municipality,
at least 10 days prior to the date of hearing.
(b)
Notice by personal service or certified mail
to the Clerk of an adjoining municipality of all hearings on the adoption,
revision or amendment of a Master Plan involving property situated
within 200 feet of such adjoining municipality, at least 10 days prior
to the date of any such hearing.
(c)
Notice by personal service or certified mail
to the County Planning Board of all hearings on the adoption, revision
or amendment of the Municipal Master Plan, at least 10 days prior
to the date of the hearing, such notice to include a copy of any such
proposed Master Plan or any revision or amendment thereto, and notice
of the adoption, revision or amendment of the Master Plan not more
than 30 days after the date of such adoption, revision or amendment,
such notice to include a copy of the Master Plan or revision or amendment
thereto.
C.
Notice of hearing on ordinance or capital improvement
program; notice of action on capital improvement or Official Map.
(1)
Notice by personal service or certified mail shall
be made to the Clerk of an adjoining municipality of all hearings
on the adoption, revision or amendment of a development regulation
involving property situated within 200 feet of such adjoining municipality,
at least 10 days prior to the date of any such hearing.
(2)
Notice by personal service or certified mail shall
be made to the County Planning Board of all hearings on the adoption,
revision or amendment of any development regulation at least 10 days
prior to the date of the hearing, and the adoption, revision or amendment
of the municipal capital improvement program or Municipal Official
Map not more than 30 days after the date of such adoption, revision
or amendment. Any notice provided hereunder shall include a copy of
the proposed development regulation, the Municipal Official Map or
the municipal capital improvement program or any proposed revision
or amendment thereto, as the case may be.
D.
Filing of ordinances.
(1)
This chapter or any revision or amendment thereto
shall not take effect until a copy thereof has been filed with the
County Planning Board.
(2)
An Official Map shall not take effect until filed
with the county recording officer.
(3)
Copies of this chapter and any revisions or amendments
thereto shall be filed and maintained in the office of the Township
Clerk.
[Amended 7-23-1984 by Ord. No. 245-84]
Any interested party may appeal to the Township Council any final decision of the Board of Adjustment approving any application for development pursuant to § 165-26A(4).
A.
Time of appeal. Any such appeal shall be made within 10 days of the date of publication of such final decision pursuant to § 165-8A(8). The appeal to the governing body shall be made by serving the Township Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and the name and address of his attorney, if represented. Such appeal shall be decided by the governing body only upon the record established before the Board of Adjustment.
B.
Notice. Notice of the meeting to review the record below shall be given by the governing body by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 165-8A(7) and to the Board of Adjustment at least 10 days prior to the date of the meeting. The parties may submit oral and written argument on the record at such meeting, and the governing body shall provide for verbatim recording and transcripts of such meeting pursuant to § 165-8A(5).
C.
Transcript; review.
(1)
The appellant shall, within five days of service of the notice of the appeal pursuant to this section, arrange for a transcript pursuant to § 165-8A(5) for use by the governing body and pay a deposit of $50 or the estimated cost of such transcription, whichever is less, or, within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to the Municipal Clerk; otherwise the appeal may be dismissed for failure to prosecute.
(2)
The governing body shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to § 165-8A(8) unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the Board.
D.
Decision. The Township Council may reverse, remand
or affirm with or without the imposition of conditions the final decision
of the Board of Adjustment approving a variance pursuant to § 165-38A(4).
The review shall be made on the record before the Board of Adjustment.
The affirmative vote of a majority of the full authorized membership
of the Township Council shall be necessary to reverse, remand or reaffirm,
with or without conditions, any final action of the Board of Adjustment.
E.
Stay of proceedings. An appeal to the governing body
shall stay all proceedings in furtherance of the action in respect
to which the decision appealed from was made unless the Board of Adjustment
certifies to the governing body, after the notice of appeal shall
have been filed with that Board, that by reason of facts stated in
the certificate a stay would, in its opinion, cause imminent peril
to life or property. In such case, proceedings shall not be stayed
other than by an order of the Superior Court on application, upon
notice to the Board of Adjustment and on good cause shown.
F.
Notice of decision. The governing body shall mail
a copy of the decision to the appellant, or if represented, then to
his attorney, without separate charge, and for a reasonable charge
to any interested party who has requested it, not later than 10 days
after the date of the decision. A brief notice of the decision shall
be published in the official newspaper of the municipality, if there
is one, or in a newspaper of general circulation in the municipality.
Such publication shall be arranged by the Township Clerk, provided
that nothing contained herein shall be construed as preventing the
applicant from arranging such publication if he so desires. The governing
body may make a reasonable charge for its publication. The period
of time in which an appeal to a court of competent jurisdiction may
be made shall run from the first publication, whether arranged by
the municipality or the applicant.
G.
Court review. Nothing in this chapter shall be construed
to restrict the right of any party to obtain a review by any court
of competent jurisdiction according to law.
Any power expressly authorized by this chapter
to be exercised by the Planning Board or the Board of Adjustment shall
not be exercised by any other body, except as otherwise provided in
this chapter.
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 under
this chapter or under any act repealed by this chapter, as the case
may be, shall be suspended for the period of time said legal action
is pending or such directive or order is in effect.
A.
In the event that a developer submits an application
for development proposing a development that is barred or prevented,
directly or indirectly, by a legal action instituted by any state
agency, political subdivision or other party to protect the public
health and welfare or by a directive or order issued by any state
agency, political subdivision or court of competent jurisdiction to
protect the public health and welfare, the municipal agency shall
process such application for development regulations, and if such
application for development complies with municipal development regulations,
the municipal agency shall approve such application, conditioned on
removal of such legal barrier to development.
B.
In the event that a development proposed by an application
for development requires an approval by 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 municipality shall make
a decision on any application for development within the time period
provided in this chapter or within such 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.
[Amended 9-8-1986 by Ord. No. 302-86; 12-14-1987 by Ord. No. 352-87; 5-9-1988 by Ord. No. 367-88; 3-8-1995 by Ord. No. 569-95; 3-25-1998 by Ord. No. 646-98]
There is hereby established, in connection with
various applications for development and other matters which are the
subjects of this chapter the following schedule of fees and deposits
which are the personal responsibility of both the property owner and
the applicant if not one and the same:
A.
Copy of a decision of the governing body to an interested party in connection with an appeal pursuant to § 165-9: $10.
B.
Publication in a newspaper of a decision of the governing body on an appeal pursuant to § 165-9: cost of publication.
C.
Development applications:
(1)
Outline of nonrefundable application and initial escrow
fees.
(e)
Preliminary nonresidential site plan approval:
[1]
Application fee: $250, plus $5 per 1,000 square
feet of lot area, or part thereof, plus $5 per 100 square feet of
proposed building floor area, or part thereof.
[2]
Escrow fee. If the gross floor area of the building
is 100,000 square feet or less: $1,000 plus $10 per 1,000 square feet
of lot area, plus $10 per 100 square feet of gross floor area of the
building. If the gross floor area of the building exceeds 100,000
square feet: $500 plus $3.50 per 1,000 square feet of lot area, plus
$3.50 per 100 square feet of gross floor area of the building.
(f)
Final nonresidential site plan approval:
[1]
Application fee: $250 plus $1 per 1,000 square
feet of lot area, or part thereof, plus $1 per 100 square feet of
proposed building floor area, or part thereof.
[2]
Escrow fee. If the gross floor area of the building
is 100,000 square feet or less: $1,000 plus $3 per 1,000 square feet
of lot area, plus $3 per 100 square feet of gross floor area of the
building. If the gross floor area of the building exceeds 100,000
square feet: $500 plus $1 per 1,000 square feet of lot area, plus
$1 per 100 square feet of gross floor area of the building.
(i)
Preliminary planned development, including mixed
residential cluster, multifamily, mobile home park and PUD developments:
(k)
Final planned development, including mixed residential
cluster, multifamily, mobile home park and PUD developments:
(l)
Conceptual review of a concept plan for a potential
application before the Planning Board, other than a conceptual general
development plan: a single but not more than one-hour appearance
before the Planning Board or Board of Adjustment with Board professionals
in attendance.
[Amended 12-8-2004 by Ord. No. 868-04]
[1]
Application fee: $200.
[2]
Escrow fee: $1,000.
[3]
In the event that the developer submits within
90 days a minor subdivision or site plan, or preliminary major subdivision
or site plan for the same proposed development and layout, the amount
of any conceptual review escrow fees that have not been expended shall
be credited toward the applicable escrow fee.
(m)
Conceptual general development plan:
[1]
Application fee: 1/3 of the preliminary
planned development application fee.
(2)
Affordable Housing District (AH). Only for Council on Affordable Housing low and moderate income units in the Affordable Housing District, the Subsection C(1)(g) preliminary application fee of $50 per dwelling unit and the Subsection C(1)(h) final application of $20 per dwelling unit shall be waived.
D.
Variance and appeals. In addition to Subsection C fees the following application and escrow fees apply:
(1)
Appeals from a decision of the building or zoning official pursuant to § 165-26A(1):
(2)
Interpretation of the Zoning Map or zoning regulations or requests for decisions on other special questions pursuant to § 165-26A(2):
(3)
Variances pursuant to § 165-26A(3) from lot area, lot dimensional, setback and yard requirements:
(4)
Variance from use regulations pursuant to § 165-26A(4):
(5)
Direction pursuant to § 165-26A(5) for issuance of a permit for a building or structure in the bed of a mapped street or public drainage way, flood-control basin, or public area reserved on an Official Map:
E.
Certificates showing approval: $25.
F.
Environmental impact statement (§ 165-72).
(3)
Aquifer test and analysis.
[Added 8-14-2002 by Ord. No. 788-02]
(a)
Review of design of aquifer test
[1]
Residential subdivisions of three new building
lots or more. $1,000 for the first lot and $100 for each proposed
additional lot.
[2]
Nonresidential and residential site plans. $1,000
for the first 1,000 gallons of average daily demand and $100 for each
additional 1,000 gallons of average daily demand
G.
Site plan application fees and escrows for telecommunications
installations shall be as follows:
[Added 8-12-1998 by Ord. No. 665-98]
[Added 9-8-1986 by Ord. No. 302-86]
A.
Escrow fees: general provisions.
(1)
In addition to the nonrefundable application fees,
the applicant shall be required to establish one or more escrow accounts
with the Township to cover the cost of professional services in connection
with the review of said application, including but not limited to
shorthand reporting and transcripts, review, inspection, testimony
and reports of the Township Engineer, Township Planner, Township Attorney,
Board Attorney and any other professionals whose services are deemed
necessary with respect to processing the application by the approving
agency in order to assure compliance with the provisions of this chapter.
Said escrow fees shall be required for all applications for approval
of preliminary and final site plans, preliminary and final subdivision,
planned developments and variances of any type.
(2)
At the time of submitting an application to the administrative
officer for site plan or subdivision review, before either the Board
of Adjustment or Planning Board, the applicant shall be required to
make a deposit to the escrow account as hereinafter provided and execute
an escrow agreement. The escrow agreement shall be in a form approved
by the Planning Board Attorney or Attorney for the Board of Adjustment.
All fees and escrow deposits must be paid prior to certification by
the administrative officer that the application is complete. In the
event that the amounts required to be posted by this chapter are not
sufficient to cover the Township's professional charges associated
with this application, the Planning Board or the Board of Adjustment
shall request additional escrow funds.
(3)
Following the approval of a major subdivision or site
plan and prior to the commencement of construction, the applicant
shall be required to make a further deposit to the escrow account
to provide sufficient escrow to pay for anticipated inspection fees
and any anticipated additional professional review services.
(4)
Whenever an amount of money in excess of $5,000 shall
be deposited by an applicant with the Township for professional services
employed by the municipality to review applications for development,
for municipal inspection fees or to satisfy guarantee requirements,
the money, until repaid or applied to the purposes for which it is
deposited, including the applicant's portion of the interest earned
thereon, except as otherwise provided herein, shall continue to be
the property of the applicant and shall be held in trust by the municipality.
Money deposited shall be held in escrow. The municipality receiving
the money shall deposit it in a banking institution or savings and
loan association in this State insured by an agency of the Federal
government, or in any other fund or depository approved for such deposits
by the state, in an account bearing interest at the minimum rate currently
paid by the institution or depository on time or savings deposits.
The municipality shall notify the applicant in writing of the name
and address of the institution or depository in which the deposit
is made and the amount of the deposit. The municipality shall not
be required to refund an amount of interest paid on a deposit which
does not exceed $100 for the year. If the amount of interest exceeds
$100, that entire amount shall belong to the applicant and shall be
refunded to him by the municipality annually or at the time the deposit
is repaid or applied to the purposes for which it was deposited, as
the case may be; except that the municipality may retain for administrative
expenses a sum equivalent to no more than 33 1/3% of that entire
amount, which shall be in lieu of all other administrative and custodial
expenses.
[Amended 8-13-1997 by Ord. No. 632-97R]
(5)
Payment to professionals chargeable against escrow
deposits.
[Amended 8-13-1997 by Ord. No. 632-97R]
(a)
The Chief Financial Officer of the municipality
shall make all of the payments to professionals for services rendered
to the municipality for review of applications for development, review
and preparation of documents, inspections of improvements or other
purposes. Such fees or charges shall be based upon a schedule established
by resolution. The application review and inspection charges shall
be limited only to professional charges for review of applications,
review and preparation of documents and inspections of developments
under construction and review by outside consultants when an application
is of a nature beyond the scope of the expertise of professionals
normally utilized by the municipality. 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 municipality or approving authority shall not bill the applicant,
or charge any escrow account or deposit authorized herein, for any
municipal clerical or administrative functions, overhead expenses,
meeting room charges, or any other municipal costs and expenses except
as provided for in this section, nor shall a municipal professional
add any such charges to his bill. If the salary, staff support and
overhead for a municipal professional are provided by the municipality,
the charge shall not exceed 200% of the sum of the products resulting
from multiplying the hourly base salary, which shall be established
annually by ordinance, of each of the professionals 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.
(b)
If the municipality requires of the developer
a deposit toward anticipated municipal expenses for the professional
services, the deposit shall be placed in an escrow account. The amount
of the deposit required shall be reasonable in regard to the scale
and complexity of the development. The amount of the initial deposit
required shall be established by ordinance. For review of applications
of development proposing a subdivision, the amount of the deposit
shall be calculated based on the number of proposed lots. For review
of applications for development proposing a site plan, the amount
of the deposit shall be based on one or more of the following: the
area of the site to be developed, the square footage of buildings
to be constructed, or an additional factor for circulation intensive
sites, such as those containing drive-through facilities. Deposits
for inspection fees shall be established in accordance with § 165-49A(8).
(6)
Each payment charged to the deposit for review of
applications, review and preparation of documents and inspection of
improvements shall be pursuant to a voucher from the professional,
which voucher shall identify the personnel performing the service,
and for each date the services performed, the hours spent to 1/4
hour increments, the hourly rate and the expenses incurred. All professionals
shall submit vouchers to the Chief Financial Officer of the municipality
on a monthly basis in accordance with schedules and procedures established
by the Chief Financial Officer of the municipality. If the services
are provided by a municipal employee, the municipal employee shall
prepare and submit to the Chief Financial Officer of the municipality
a statement containing the same information as required on a voucher,
on a monthly basis. The professional shall send an informational copy
of all vouchers or statements submitted to the Chief Financial Officer
of the municipality simultaneously to the applicant. The Chief Financial
Officer of the municipality 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. If an escrow account or deposit
contains insufficient funds to enable the municipality or the approving
authority to perform required application reviews or improvement inspections,
the Chief Financial Officer of the municipality 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 reasonable time period post a deposit
to the account in an amount to be agreed upon by the municipality
or approving authority and the applicant. In the interim, any required
health and safety inspections shall be made and charged back against
the replenishment of funds.
[Amended 8-13-1997 by Ord. No. 632-97R]
(7)
The following close-out procedure shall apply to all
deposits and escrow accounts and shall commence after the Board 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. The applicant shall send written notice by certified
mail to the Chief Financial Officer of the municipality and the governing
body and to the relevant municipal professional, that the application
or the improvements as the case may be, are completed. After receipt
of such notice, the professional shall render a final bill to the
Chief Financial Officer of the municipality within 30 days, and shall
send a copy simultaneously to the applicant. The Chief Financial Officer
of the municipality shall render a written final accounting to the
applicant on the uses to which the deposit was put within 45 days
of receipt of the final bill. Any balances remaining in the deposit
or escrow account, including interest shall be refunded to the developer
along with the final accounting.
[Amended 8-13-1997 by Ord. No. 632-97R]
(8)
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
modification or amendment made by the applicant. A professional shall
not review items which are subject to approval by any state governmental
agency and not under municipal jurisdiction except to the extent consultation
with a state agency is necessary due to the effect of state approvals
in the subdivision or site plan. Inspection fees shall be charged
only for actual work shown on a subdivision or site plan or required
by an approving resolution. 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.
[Amended 8-13-1997 by Ord. No. 632-97R]
(9)
If the municipality or approving authority retains
a different professional or consultant in the place of the professional
originally responsible for development, application review or inspection
of improvements, the municipality or the approving authority shall
be responsible for all time and expenses of the new professional to
become familiar with the application or the project, and the municipality
shall not bill the applicant or charge the deposit or the escrow account
for any such services.
[Added 8-13-1997 by Ord. No. 632-97]
(10)
For purposes of this section, the annual professional services agreement entered into with the professional shall constitute the schedule required pursuant to § 165-14A(5)(a).
[Added 8-13-1997 by Ord. No. 632-97R]
(11)
Dispute resolution procedure.
[Added 8-13-1997 by Ord. No. 632-97R]
(a)
An applicant shall notify in writing the governing
body with copies to the Chief Financial Officer, and the professional
whenever the applicant disputes the charges made by a professional
for services rendered to the municipality in reviewing applications
for development, review and preparation of documents, inspection of
improvements or other charges. The governing body or its designee
shall within a reasonable time period attempt to remediate any disputed
charges. If the matter is not resolved to the satisfaction of the
applicant, the applicant may appeal to the County Construction Board
of Appeals any charge to an escrow account or a deposit by any municipal
professional or consultant, or the cost of installation of improvements
estimated by the Municipal Engineer. An applicant or his authorized
agent shall submit the appeal in writing to the County Construction
Board of Appeals. The applicant or his authorized agent shall simultaneously
send a copy of the appeal to the municipality and any professional
whose charge is the subject of the appeal. An applicant shall file
an appeal 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 an 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. An applicant may file an appeal for an ongoing services of
charges by a professional during a period not exceeding six months
to demonstrate that they represent a pattern of excessive or inaccurate
charges. An applicant making use of this provision need not appeal
each charge individually.
(b)
The County Construction Board of Appeals shall
hear the appeal, render a decision thereon, and file its decision
with a statement of the reasons therefor with the municipality not
later than 10 business days following the submission of the appeal,
unless such period of time has been extended with the consent of the
applicant. The decision may approve, disapprove, or modify the professional
charges appealed from. A copy of the decision shall be forwarded by
certified or registered mail to the party making the appeal, the municipality
and the professional involved in the appeal. Failure by the Board
to hear an appeal and render and file a decision thereon within the
time limits prescribed in this subsection shall be deemed a denial
of the appeal for purposes of a complaint, application or appeal to
a court of competent jurisdiction.
(c)
During the pendency of any appeal, the municipality
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 section. 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 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.
B.
No application for development shall be deemed complete unless and until an Escrow Fee Agreement has been signed by the applicant and submitted to the Administrative Officer together with the nonrefundable application fees required in § 165-13 and the escrow fees required therein.
[Amended 8-13-1997 by Ord. No. 632-97R; 3-25-1998 by Ord. No. 646-98]
C.
Reserved.
[Repealed 8-13-1997 by Ord. No. 632-97R]
