Article VI Administration, Enforcement and Fees

Prior to the subdivision or re-subdivision of land and prior to the issuance of a construction permit or certificate of occupancy for any development, an application shall be submitted to and approved by the Planning Board or the Board of Adjustment as provided by statute, for its review and approval in accordance with the requirements of this chapter, except that subdivision or individual lot applications for detached one- or two-family dwelling unit buildings shall be exempt from site plan review and approval. In addition, the Subdivision and Site Plan Committee may waive the requirement for filing a site plan for an accessory building not exceeding 500 square feet in ground floor area upon recommendation of the Construction Code Officer to issue a building permit for said building, provided that said building does not invade upon any required parking area, setback area or otherwise violate any requirement of this chapter.

When approval required.

Except for residential uses of buildings and buildings and uses accessory thereto, site plan approval shall be required for any new building, any addition to any existing building, any change of tenancy and/or occupancy, any permanent, freestanding sign, including monument signs, any face on commercial properties, any off-street parking area or alteration of such a parking area, any change in use of a building or part thereof, any change or modification to the exterior design or appearance of a building, any building accessory to or used in connection with a permitted farming and agricultural operation and the disturbance of more than 5,000 square feet of the surface area of any lot.

An applicant may apply for an administrative waiver of minor site plan review from the Subdivision and Site Plan Committee of the Planning Board.

In order to qualify for a waiver, the minor site plan must satisfy the following criteria:

[a]

It involves only a change in use or a change in tenancy of an existing building, or is the first use in a new building having received site plan approval.

[b]

The use does not involve the handling or storage of hazardous materials as defined in N.J.A.C. 7:1G-1 to 7:1G-5 or is located in the CWR District.

[c]

There are no outstanding health, fire, building code, zoning or traffic safety violations.

[d]

There are no outstanding taxes or assessments payable.

[e]

There are no changes to the exterior design or appearance of a building.

[f]

The facility must have an approved site plan that is less than seven years old.

[2]

For minor site plans only involving a change in tenancy from one non-medical office use to another non-medical office use of the same type (e.g., from accountant to accountant, from attorney to attorney, etc.), the Land Use Administrator shall have the authority to grant the request for waiver without referral to the Subdivision and Site Plan Committee.

[3]

The Subdivision and Site Plan Committee in determining whether or not a waiver should be granted shall, as appropriate, refer the application to one or more of the following Township employees or their approved alternates as appropriate:

[a]

Zoning Officer.

[b]

Construction Code Official.

[c]

Traffic Safety Officer.

[d]

Township Engineer.

[e]

Water and Sewer Department.

Health Officer.

Fire Official.

Township Planner.

The Subdivision and Site Plan Committee may grant or deny the request for waiver or may refer the request to the full Board if there is any question as to the action that should be taken.

[5]

An applicant may appeal any denial of a waiver by the Subdivision and Site Plan Committee to the Planning Board.

[6]

If an application lies outside the scope of this procedure or if the application is denied, the applicant may apply for minor site plan approval.

[7]

Following approval of a minor site plan, or upon the grant of an administrative waiver of minor site plan, the Zoning Officer shall issue a zoning permit authorizing the occupancy or continued occupancy, as the case may be, of the premises unless a zoning permit has been issued in accordance with § 230-39A. No use shall commence or continue without the issuance of said zoning permit.

§ 230-39 Zoning permits; building permits; certificates of occupancy.

Where a site plan has been duly approved by the Planning Board, but where the specific use or uses of the building are not known at the time of the site plan approval, such as in the case of a speculative building, no certificate of occupancy for any part of the building shall be issued until a site plan for the specific use is approved; provided, however, that the Planning Board may waive formal site plan procedures as permitted in § 230-37B(2)(b) above.

(d)

If additional stormwater runoff will be directed to lands in the Township of Montville by development in an adjoining municipality or if drainage or other improvements on lands in the Township of Montville are necessitated by a development in an adjoining municipality, a site plan for the lands in the Township of Montville so affected shall be submitted to and approved by the Planning Board. Said site plan shall be subject to all conditions and requirements, including requirements for off-tract improvements in accordance with § 230-45, applicable to site plans for lands located in the Township of Montville.

§ 230-38 Enforcement.

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

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

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

Zoning permits.

Purpose. The zoning permit looks to the location and use of the building in light of the requirements of this chapter, and certifies that such location and use is permitted, or that it exists as a nonconforming use and/or nonconforming structure, or is permitted by the terms of a variance. To ensure compliance with the provisions of this chapter, no person shall erect, alter or convert any structure or building or part thereof or alter the use of any land subsequent to the adoption of this chapter, until a zoning permit has been issued by the Zoning Officer.

Application for zoning permit. All zoning permit applications shall be made, in writing, by the owner or his/her authorized agent and shall include a statement to the use or intended use and shall be accompanied by a plan of the plot showing thereon the exact size, shape and location of all existing and proposed structures and such other information as may be necessary to provide for the enforcement of this chapter. The zoning permits shall be granted or denied within 10 business days from the date that a written application is filed with the Zoning Officer.

Issuance of zoning permit. Zoning permits shall be secured from the Zoning Officer prior to construction, erection or alteration of any structure or part of a structure or use of a structure or land. It shall be the duty of the Zoning Officer to issue a zoning permit, provided that person is satisfied that the proposed use conforms with all requirements of this chapter. It is the applicant's responsibility that all other reviews and actions, if any, called for in this chapter or any other Township ordinance have been complied with and all necessary approvals secured therefor.

Denial of zoning permit. When the Zoning Officer is not satisfied that the applicant's proposed development will meet the requirements of this chapter, the Zoning Officer shall refuse to issue a zoning permit. When an application for a zoning permit is denied, it is the duty of the Zoning Officer to specify what sections of the application are not in conformance with the zoning ordinance. The applicant may appeal to the Zoning Board of Adjustment.

Records of zoning permits. It shall be the duty of the Zoning Officer to keep a record of all applications for zoning permits issued, together with a notation of all special conditions involved. The Zoning Officer shall prepare a monthly report for the Township Committee, Planning Board, Zoning Board of Adjustment and Tax Assessor, summarizing for the period since his/her previous report all zoning permits issued by him/her and all complaints of violations and the action taken by him/her consequent thereon.

Building permits.

No building or structure or part thereof shall be erected, constructed, reconstructed, structurally altered or moved until a building permit has been procured from the Construction Code Officer. All applications for building permits shall be filed in accordance with the Uniform Construction Code.

No building permit shall be issued for the erection, construction, reconstruction, structural alteration or moving of any building or structure or part thereof until the Zoning Officer has certified that the plans and intended use indicate that such building or structure is designed and intended to conform in all respects to the provisions of this chapter. The Zoning Officer's certification shall be considered a prior approval required prior to the issuance of a building permit by the Construction Official.

A record of all applications, plot plans and permits shall be kept by the Construction Department pursuant to the New Jersey Uniform Construction Code.

Before a building permit is issued for a new building or for an extension or relocation of an existing building or before a permit is issued for the installation of any improvements required by this chapter or by a plot plan approved by the Planning Board, a licensed engineer or land surveyor shall visibly locate said building or improvements, together with the lot lines of the intended site for inspection by the Zoning Officer. The Zoning Officer shall ascertain that all requirements of this chapter and/or the approved plot plan are complied with before the issuance of a building permit.

Following construction of the foundation of a new building and prior to the start of framing, the applicant shall submit an accurate foundation survey in accordance with N.J.A.C. 13:40-5, in triplicate, to the Zoning Officer for his/her review for compliance with this chapter. This survey shall show the dimensions of the new foundation, the distance from front and both side property lines of the two foundation corners nearest to these property lines and the elevation of the top of the foundation. If the building will be served by an individual sewage disposal system, and/or an individual water system (well), the Zoning Officer shall forward the foundation survey to the Board of Health for its review and approval in order to determine the proper relationship between the elevations of the building and the disposal system and ensure adequate gravity flow into the system. If a disposal field is to be built up by fill to more than two feet, a grading plan as required by the New Jersey Department of Environmental Protection Standards for the Construction of Individual Subsurface Sewage Disposal Systems shall first be reviewed and approved by the Township Engineer, who may establish such conditions as he deems appropriate. Following approval of the foundation survey by the Zoning Officer and approvals by the Board of Health and the Township Engineer as may be required, the Zoning Officer may authorize the completion of the building.

(6)

Prior to the issuance of a building permit involving any property located in the Critical Water Resources District, a stormwater management plan shall be submitted to and approved by the Planning Board in accordance with § 230-63 of this chapter, unless a stormwater management plan has already been approved by the Planning Board as part of a development application, or unless otherwise waived by the Planning Board.

Certificates of occupancy.

No land shall be occupied or used and no building hereafter erected or altered shall be occupied or used, in whole or in part, for any purpose whatsoever until a certificate of occupancy shall have been issued.

A certificate of occupancy shall not be issued until the Zoning Officer has certified that the land, use, building, structure or premises complies with all provisions of this chapter and all other applicable Township and state requirements and, if involved, with such conditions as have been imposed by any required site plan approval pursuant to this chapter. The Zoning Officer's certification shall be considered a prior approval required prior to the issuance of a certificate of occupancy by the Construction Official. When issued, the certificate of occupancy shall state that such compliance has been achieved.

The certificate of occupancy shall specify the use of land or building and any circumstances or conditions imposed by any public agency, code or regulation. Any change in use, including a change from one permitted use to another kind of permitted use in the same zone, as well as any change in occupancy or tenancy in the nonresidential zones, will be treated as a new use, and a new certificate of occupancy shall be required. Prior to the issuance of a certificate of occupancy from said changes in use, all provisions of this chapter shall be complied with in the same manner as if the new use were a new structure or a new use of land, including site plan review requirements, unless the same are waived by the Planning Board pursuant to § 230-37B(2)(b).

A certificate of occupancy shall be issued within 10 business days after receipt of an application for the certificate and after the building has been completed in accordance with § 230-39B above, but not prior to any required authorization by the Planning Board in connection with site plan approval pursuant to this chapter. A record of all certificates shall be kept on file in the office of the Construction Department, and copies shall be furnished upon request to any person having a proprietary or leasehold interest in the building or land affected.

§ 230-40 Stop orders and permit revocations.

Where a preliminary site plan, as required by this chapter, has been duly reviewed and approved by the Planning Board, the erection or alteration of the building shall not be deemed to be completed until all the requirements of the approved site plan are met.

(6)

No certificate of occupancy shall be issued for any building or structure unless and until there shall be a street sign first installed on the street on which such building or structure is located.

(7)

In the case of a site plan for multifamily housing, a certificate of occupancy for any dwelling unit shall not be issued until all safety-related improvements have been installed pursuant to § 230-43.

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

Revocation of permits or certificates of occupancy.

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

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

§ 230-41 Violations and penalties.

Any person who violates any of the provisions of this chapter or who fails to comply with any of the requirements thereof or who erects, raises, moves, extends, enlarges, alters or demolishes any structure in violation of any detailed statement or plan submitted hereunder, or who puts into use any lot or premises in violation of any detailed statement or plans submitted hereunder or who refuses reasonable opportunity to inspect any premises shall be subject to such penalties as are provided for in Chapter 1, Article III, General Penalty. Any person who fails to replenish an escrow account posted with the Township of Montville in conjunction with a Board application within 30 days of notice of a deficiency shall be subject to such penalties as are provided for in Chapter 1, Article III, General Penalty.

[Amended 1-28-2014 by Ord. No. 2014-01]

The owner of any building or structure, lot or land or part thereof where anything in violation of this chapter shall be placed or shall exist and any architect, builder, contractor, agent, person or corporation employed in connection therewith and who assists in the commission of such violation shall each be guilty of a separate misdemeanor and, upon conviction thereof, shall each be liable to the penalty specified in Subsection A of this section.

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

In addition, the Township may institute and maintain a civil action:

For injunctive relief.

To set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of compliance has not been issued in accordance with N.J.S.A. 40:55D-56, but only if the municipality has a Planning Board and has adopted, by ordinance, standards and procedures in accordance with N.J.S.A. 40:55D-38.

In any such action, the transferee, purchaser or grantee shall be entitled to a lien upon the portion of the land from which the subdivision was made that remains in the possession of the developer or his assigns or successors, to secure the return of any deposits made or purchase price paid and, also, a reasonable search fee, survey expense and title closing expense, if any. Any such action must be brought within two years after the date of the recording of the instrument of transfer, sale or conveyance of said land or within six years if unrecorded.

§ 230-42 Fees.

There is hereby established, in connection with various applications for development and other matters which fees are the subjects of this chapter, a schedule of fees, which fees shall be paid by the applicant. Said schedule of fees is included in Chapter 169, Fee Schedule, of the Township Code of Ordinances.

Development application fees and related charges. The developer shall, at the time of filing a submission, pay the nonrefundable fee specified in Chapter 169, Fee Schedule, to the administrative officer by certified check or bank money order. Proposals involving more than one use shall pay a fee equaling 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 a variance, shall pay a fee equal to the sum of the fee for each element.

Technical review escrow deposits.

In addition to the filing fees or any other fees required in this article, an applicant shall file with the administrative officer an escrow deposit fee of adequate funds to cover the costs of professional services in connection with the review of an application for development by planners, engineers, attorneys and other professional and/or experts whose services are deemed necessary with respect to processing the application by the approving authority in order to assure compliance with the provisions of this chapter. Technical review fees shall be calculated in accordance with the actual time required for review at rates set forth in a schedule of professional fees established each year by resolution of the Planning Board and Zoning Board of Adjustment maintained in the office of the Township Clerk for public inspection. The administration of technical review escrow deposits and payments made to professionals from said deposits shall be in accordance with the provisions of N.J.S.A. 40:55D-53.1 and Section 13 of P.L. 1991, c. 256.

At the time of filing an application for development, the applicant shall pay to the Township an initial deposit for technical review fees in accordance with Chapter 169, Fee Schedule. The amount shown represents only the initial deposit. An applicant will be required to deposit additional funds when professional costs necessitate. In addition, deposit of escrow amounts may be required even when an initial deposit is not required if professional services become warranted. The amount of such fees shall be determined by the Director of Land Use and may include, but are not necessarily limited to, the following:

Pre-application conferences.

Subcommittee meetings.

Special meetings and other extraordinary services required by an application.

An application shall not be deemed complete until the application fee and initial escrow deposit have been paid. In the event a project is of a nature that is not expressly included in one of the categories in Chapter 169, Fee Schedule, the amount of the fee and deposit shall be determined by the Director of Land Use applying the standard applicable to other applications most closely resembling the project. Also, additional funds may be required when the original amount is depleted by 60% or more and the application is still in process. The additional amount shall be determined by the Director of Land Use.

Inspection fees. The developer shall reimburse the Township for all reasonable inspection fees incurred by the Township Engineer for the inspection of improvements, provided that the Township may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the amount set forth in Chapter 169, Fee Schedule, which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4 and which shall be subject to the following conditions:

Fees for engineering inspections during and after construction, and during the maintenance period, shall be deposited in cash, or by certified check, with the Township, prior to the issuance of a construction permit by the Township Engineer.

In the event that construction proceeds at a very slow rate, outside of the time frame as established in the developer's agreement, and the work is not pursued in a diligent manner, resulting in an unreasonable number of engineering inspections or, in the event of faulty installations, inferior materials or workmanship causing an unreasonable number of engineering inspections, an additional fee shall be paid by the applicant to cover the engineering cost of such additional inspections.

No remaining portion of an engineering inspection fee, if any, shall be returned to a developer or his/her successor until the expiration of the maintenance period.

Exemptions. All political entities and Township entities shall be exempt from payment of any fee under this chapter, including review escrow deposits. All charitable, philanthropic, fraternal and religious nonprofit organizations holding a tax-exempt status under the Federal Internal Revenue Code of 1954 [26 U.S.C. § 501(c) or (d)] shall be exempt from any application charge established under this chapter. The aforementioned organizations shall, however, be required to make all review fee escrow deposits established under this chapter.

Disputes. An applicant shall notify, in writing, the governing body with copies to the Township's chief financial officer (CFO), the approving authority and the professional whenever the applicant disputes the charges made by a professional for service rendered to the municipality 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.[1] The governing body or its designee shall, within a reasonable time period, attempt to mediate 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. The appeals process shall be as set forth in N.J.S.A. 40:55D-53.2a.

§ 230-43 Improvements; performance and maintenance guarantees.

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

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

The furnishing of a performance guarantee in favor of the Township in an amount not to exceed 120% of the cost of installation for all improvements not installed prior to final approval, which cost shall be determined by the Township Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4.

A minimum of 10% of the total guarantee required shall be in the form of cash or a certified check made payable to the Township of Montville. The balance may be in the form of cash, a certified check, a letter of credit, a performance bond from a bonding company included in a list of acceptable bonding companies maintained by the Township Administrator, or any combination of the foregoing. The Township Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimates shall be appended to each performance guarantee posted by the obligor.

Any cash or certified check furnished as a portion of a performance guarantee in favor of the Township shall be held in escrow by the Township and deposited or invested in the manner prescribed in N.J.S.A. 40:55D-53.1 for escrow interest, the principal amount to be refunded to the obligor upon release from liability or reduction in the amount of the performance guarantee.

The performance guarantee shall be approved by the Township Attorney as to form, sufficiency and execution. The performance guarantee shall list all required improvements in detail, setting forth the amount, quantity and specification of all items. It shall be the responsibility of the Township Engineer to monitor progress of installation of improvements and the sufficiency of the performance guarantee as development progresses. In the event the Township Engineer determines, at anytime, that guarantees are insufficient to cover the completion of improvements, he/she may, with the concurrence of the Township Attorney, adjust the limits of the guarantees. Any determination by the Township Engineer may be appealed to the Township Committee within 10 days of such determination. Failure of the developer to comply with the decision of the Township Engineer or to appeal said decision shall require immediate cessation of construction by issuance of a stop-work order by the Township Engineer.

No performance guarantee shall be considered filed or accepted for filing with the Township Clerk unless and until the following conditions are met:

Final construction plans have been filed with the Planning Board and an estimate of the cost of construction has been filed with the Township Committee.

The Township Engineer shall have certified, in writing, to the Township Committee that the amount thereof is sufficient to assure the completion of the improvements.

The Township Attorney shall have approved the sufficiency of the form and execution of said performance guarantee.

The Township Committee shall have approved the qualifications of the surety and stipulated the duration of said guarantee. If the applicant elects to post performance guarantees pursuant to this subsection, the final plat shall contain the following statement in bold letters.

	NOTICE
	CONSTRUCTION OF ALL REQUIRED IMPROVEMENTS IS TO BE COMPLETED WITHIN THE TIME FRAME PROVIDED FOR IN THE DEVELOPER'S AGREEMENT UNLESS AN EXTENSION OF TIME HAS BEEN OBTAINED FROM THE APPROPRIATE MUNICIPAL AGENCY. THE MUNICIPALITY HAS NO OBLIGATION TO CONSTRUCT ANY IMPROVEMENTS NOT COMMENCED, NOR TO COMPLETE ANY IMPROVEMENTS COMMENCED BY DEVELOPER EXCEPT TO THE EXTENT OF FUNDS RECEIVED FROM THE PERFORMANCE GUARANTEES POSTED BY DEVELOPER WITH THE MUNICIPALITY.

NOTICE

CONSTRUCTION OF ALL REQUIRED IMPROVEMENTS IS TO BE COMPLETED WITHIN THE TIME FRAME PROVIDED FOR IN THE DEVELOPER'S AGREEMENT UNLESS AN EXTENSION OF TIME HAS BEEN OBTAINED FROM THE APPROPRIATE MUNICIPAL AGENCY. THE MUNICIPALITY HAS NO OBLIGATION TO CONSTRUCT ANY IMPROVEMENTS NOT COMMENCED, NOR TO COMPLETE ANY IMPROVEMENTS COMMENCED BY DEVELOPER EXCEPT TO THE EXTENT OF FUNDS RECEIVED FROM THE PERFORMANCE GUARANTEES POSTED BY DEVELOPER WITH THE MUNICIPALITY.

Such performance guarantee shall run for a period to be determined by the Township Committee in conjunction with the developer's agreement. (See § 230-44.) The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Township Committee by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of installation as determined at the time of the passage of the resolution.

If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Township for the reasonable cost of the improvements not completed or corrected and the Township may either prior to or after the receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.).

Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the Township Committee, in writing, by certified mail, that the Township Engineer prepare, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactorily completed improvements. A copy of the request shall be sent to the Township Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Township Engineer shall inspect all improvements covered by the request and shall file a written list and report with the Township Committee, with a copy to the obligor, not later than 45 days after the receipt of the obligor's request. The list prepared by the Township Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report shall also identify each improvement determined to be complete and satisfactory, together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to Subsection A of this section.

The Township Committee, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Township Engineer, or reject any or all of these improvements, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Township Engineer. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the Township Committee, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the performance guarantee posted may be retained to ensure completion of all improvements. In the event that the obligor has made a cash deposit with the Township or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

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

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

All of the improvements shall be subject to inspection and approval by the Township Engineer who shall be notified by the developer at least 48 hours prior to the start of the construction. No underground installations shall be covered until inspected and approved. The obligor shall reimburse the Township for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements, as set forth in § 230-42C. The Township Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38(a), the Planning Board or Board of Adjustment, as the case may be, shall establish a time schedule or phasing/sectioning plan for the installation of improvements and a level of monetary guarantees coordinated with that schedule or plan in order to protect the Township. Failure of the developer to meet any time limit or phasing/sectioning deadline shall necessitate review by the approving authority.

Timing or phasing/sectioning of improvements shall be established with consideration of the following factors:

The estimated amount of time needed to install all improvements;

Physical characteristics of the site;

Current market and economic conditions;

(d)

The estimated cost of improvements and the nature of the performance guarantees; and

(e)

Representations of the developer relative to his/her ability to meet the deadlines to be established.

Any time schedule and phasing/sectioning plan shall be incorporated into the developer's agreement referred to in § 230-44.

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

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

The final bituminous surface course of streets;

Street signs;

Dry wells and swales as may be required;

Monuments;

Shade trees;

Sidewalks; and

In the case of site plans only, landscaping.

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

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

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

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

The applicant shall provide for a maintenance guarantee to be posted with the Township Committee for a period not to exceed two years after final acceptance of the improvements, in an amount not to exceed 15% of the cost of the improvement, which cost shall be determined by the Township Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the municipality for such utilities or improvements. The Township Engineer and the Township Committee shall review the maintenance bond, and it shall be reviewed by the Township Attorney as to form, sufficiency and execution and approved by the governing body. The maintenance bond shall be expressly conditioned upon the maintenance by the subdivider of all such improvements for a period of two years and particularly shall guarantee the remedying of any defects in such improvements which occur during said period. The maintenance guarantee shall further guarantee the replacement of any shade trees found to be unhealthy within two years after acceptance.

Safety and stabilization guarantee.

[Added 2-9-2021 by Ord. No. 2021-02]

Safety and stabilization guarantee required.

The developer shall furnish a safety and stabilization guarantee in favor of the Township of Montville for the purpose of returning property that has been disturbed to a safe and stable condition or otherwise implementing measures to protect the public from access to an unsafe or unstable condition.

The Township shall be permitted to access the guarantee when:

Site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure; and

[2]

Work has not recommenced within 30 days following the provision of written notice by the Township to the developer of the Township's intent to claim payment under the guarantee.

At the developer's option, the safety and stabilization guarantee may be included as a line item in the performance guarantee rather than in the form of a separate guarantee.

(d)

The amount of the safety and stabilization guarantee shall be calculated pursuant to N.J.S.A. 40:55D-53.4 as follows:

$5,000 for the first $100,000 of bonded improvement costs; plus

[2]

2.5% of bonded improvement costs in excess of $100,000 up to $1,000,000; plus

[3]

1% of bonded improvement costs in excess of $1,000,000.

(e)

The safety and stabilization guarantee shall be released upon the determination of the Township Engineer that the development of the project site has reached a point that the improvements installed are adequate to avoid any potential threat to public safety.

§ 230-44 Developer's agreement.

Within 90 days of the adoption of a resolution granting final subdivision approval and prior to the execution of the final subdivision plat, there shall be executed and delivered to the Township Attorney an agreement between the developer and the Township incorporating all of the terms and conditions of final approval. The agreement shall be drawn by the Township Attorney and shall be executed by the owner and developer of the subdivision.

The agreement must contain the following provision: "It is hereby understood and agreed that in the event the principal shall default in the performance of its obligation under this agreement, then the Township shall perform said principal's obligation at the option of the Township Committee."

Implicit in every preliminary approval and part of each such agreement in connection with final approval shall be the agreement of the developer to:

Procure all necessary drainage easements of any nature whatsoever.

Make such revisions in the drainage plan as may be reasonably required before or during construction by the Township Engineer. All drainage problems shall be resolved to the satisfaction of the Township Engineer prior to the issuance of the final certificate of occupancy in the subdivision or site plan.

Make changes to the approval and/or plan in the interest of public health and safety.

In the event that all of the improvements have not been installed within the time period set forth in the developer's agreement, the developer may request, in writing, to the Township Committee, a one-year extension of the time in which to complete all improvements. No more than two such extensions will be considered unless the developer's agreement shall be accompanied by an application fee of $300 to cover the engineering and legal fees associated with the processing of the application.

§ 230-45 Off-tract improvements.

Construction or contribution required. Pursuant to the powers established in N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-42, construction of or contributions for off-tract water, sewer, drainage and street improvements may be required in accordance with the following criteria:

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

Contributions by developer toward required off-tract improvements:

In cases where the need for any off-tract improvement is necessitated by the proposed development application, and where the Planning Board determines that properties outside the development will also be benefited by the improvements, the Planning Board shall utilize the criteria set forth in § 230-45C below in determining the developer's proportionate share of such improvements. In addition, the Board shall be guided by the rules and regulations specified in this chapter and the Master Plan. The Board may also be guided by counsel from the Board Attorney, Engineer, Planning Consultant and other qualified experts and municipal officials relative to the subject matter.

In the event that the Board determines that one or more improvements constitute an off-tract improvement, the Board shall notify the Township Committee of the same specifying the Township's recommendation relative to the estimated cost of same, the applicant's prorated share of the cost, and possible methods or means to implement same, including but not limited to performance and maintenance guarantees, case contributions, development agreements and other forms of surety.

The Board shall not grant final approval on the subdivision until all aspects of such conditions have been mutually agreed upon by both the applicant and the Township Committee and a written resolution to that effect by the Township Committee has been transmitted to the Board.

Methods of implementation.

Performance and maintenance guarantees. Where a performance or maintenance guarantee or other surety is required in connection with an off-tract improvement, the applicant shall be required to follow the same procedures and requirements as specified in this chapter for other improvements.

Development agreement. Where a development agreement is required governing off-tract improvements or other conditions as may be required by this chapter or by the Board, said agreement shall be approved as to form, sufficiency and execution by the Board Attorney and Township Attorney. Said agreement shall specify the amount of cash contributions, if any, the method of payment, the relative timing of such payment, and the obligation or obligations to be undertaken by the Township of Montville.

Cash contributions, when not required. Cash contributions for off-tract improvements shall not be required under the following conditions:

Where another county or state agency has jurisdiction over the subject improvement and requires a cash contribution, guarantee or other surety of the applicant in lieu of such conditions imposed by the Township of Montville;

Where a benefit assessment or other similar tax levy is imposed upon the applicant for the off-site improvement provided; or

Where the applicant, where legally permissible, can undertake the improvements in lieu of the municipality, subject to standards and other conditions as may be imposed by the Township of Montville.

Cash contributions, method of payment. Where a cash contribution is required by this chapter, said contribution shall be deposited with the Township Chief Financial Officer with a copy of the applicant's transmittal letter forwarded to the Township Committee, the Township Engineer and the Board. Any and all monies received by the Chief Financial Officer shall be deposited in an escrow account for the purpose of undertaking the improvements specified. Where such improvements are not undertaken or initiated for a period of 10 years from the posting of the funds, the funds may be retained by the Township and may be used for general municipal purposes, but in such event, neither the applicant nor any of his heirs, executors, administrators, or grantors shall be liable to the Township for any assessment for the purpose of installing any of the improvements for which said cash contribution was made.

Pro rata formula for determining applicant's share of off-tract improvements. Where an off-tract improvement is required, the following criteria shall be utilized in determining the proportionate share of such improvement to the applicant:

Street widening, alignment, corrections, channelization of intersections, construction of barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements not covered elsewhere and the construction of new streets and other similar street or traffic improvements. The applicant's proportionate share shall be in the ratio of the estimated peak hour traffic capacity of the present facility and the estimated peak hour traffic generated by the proposal development. The ratio thus calculated shall be increased by 10% for contingencies.

Water distribution facilities, including the installation of new water mains, the extension of existing water mains, the relocation of such facilities and the installation of other appurtenances associated therewith. The applicant's proportionate cost shall be in the ratio of the estimated daily use of water from the property or properties in gallons to the sum of the deficiency in gallons per day for the existing system or subsystem and the estimated daily use of water for the proposed development. The ratio thus calculated shall be increased by 10% for contingencies.

Sanitary sewage distribution facilities, including the installation, relocation or replacement of collector and interceptor sewers and the installation, relocation or replacement of other appurtenances associated therewith. The applicant's proportionate cost shall be in the ratio of the estimated daily flow in gallons to the sum of the present deficient capacity for the existing system or subsystem and the estimated daily flow from the proposed project or development. In the case where the peak flow for the proposed development may occur during the peak flow period for the existing system, the ratio shall be the estimated peak flow rate from the proposed development in gallons per minute to the sum of the present peak flow deficiency in the existing system or subsystem and the estimated peak flow rate from the proposed development. The greater of the two ratios thus calculated shall be increased by 10% for contingencies and shall be the ratio used to determine the cost to the applicant.

Stormwater and drainage improvements, including installation, relocation or replacement of transmission lines, culverts, catch basins and the installation, relocation or replacement of other appurtenances associated therewith. The applicant's proportionate cost shall be in the ratio of the estimated peak surfaces runoff as proposed to be delivered into the existing system measured in cubic feet per second deficient for the existing system and the estimated peak flow as proposed to be delivered. The ratio thus calculated shall be increased by 10% for contingencies. The applicant's engineer shall compute the drainage basin area and the area of the development and the percent of the total drainage basin area occupied by the development. Where no drainage system exists which will receive the flow of the surface water from the applicant's development, the applicant shall furnish all drainage rights-of-way deemed to be necessary by the Board.