Borough of Rocky Hill, NJ Article IV General Provisions

[Amended 12-17-1979 by Ord. No. 10-1979; 6-16-1980 by Ord. No. 13-1980; 6-1-1981 by Ord. No. 19-1981; 7-1-1985 by Ord. No. 6-1985; 3-2-1987 by Ord. No. 3-1987; 3-5-1990 by Ord. No. 1-1990; 3-16-1993 by Ord. No. 2-1993; 11-15-1993 by Ord. No. 7-1993]

§ 80-4 Administration.

These rules, regulations and standards shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Borough of Rocky Hill. Any action taken by the Planning Board and Board of Adjustment under the terms of this chapter shall give primary consideration to the requirements of this chapter and to the welfare of the entire community.

§ 80-5 Amendments.

All provisions of this chapter may be amended in accordance with applicable laws in effect at the time of the amendment.

§ 80-6 Appeals.

[Amended 9-21-2020 by Ord. No. 2020-02]

A. Any interested party desiring to appeal the decision of the Planning Board may appeal to the governing body any final decision approving an application pursuant to § 80-20D(1)(k)[4]. Such appeal shall be made within 10 days of the date of publication of such final decision. The appeal to the governing body shall be made by serving the Borough 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 name and address of his attorney, if represented. The appellant shall serve a copy of the notice of appeal on the municipal agency whose decision is being appealed. Such appeal shall be decided by the governing body only upon the record established before the Planning Board. The appellant shall, within five days of service of the notice of appeal, arrange to obtain a duplicate of the sound recording of the proceeding, at the applicant's expense pursuant to N.J.S.A. 40:55D-10f, and, within 35 days of the notice of appeal, submit three copies of the transcript prepared from the sound recording, certified by the transcriber to be accurate, or three copies of the transcript as otherwise arranged, to the Borough Clerk; otherwise appeal may be dismissed for failure to prosecute.

B. The governing body shall concluded a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to N.J.S.A. 40:55D-10 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 time shall constitute a decision affirming the action of the Planning Board.

C. Any appeal to the Borough Council for exception, variance or relief from the standards pertaining to an Airport Safety Zone shall follow the same procedures as all other appeals for variances or relief from this chapter. The Council may grant such variance or relief if and only if that variance or relief is contingent upon the issuance of a permit allowing the variance or relief by the New Jersey Commissioner of Transportation.

§ 80-7 Application charges and escrow deposits.

[Amended 6-17-1996 by Ord. No. 6-1996; 12-20-2004 by Ord. No. 15-2004]

A. Application procedures. Every development application, application for informal review, preservation plan meeting the criteria set forth in § 80-7F(3)(c), appeal, request for interpretation, and other form of relief in § 80-7F shall be accompanied by a check payable to the Borough in accordance with the schedule set forth in this section. Applications for development requiring a combination of approvals (e.g., a subdivision with site plan and hardship variances or both a preliminary and final site plan or subdivision) shall pay an amount equal to the sum of the amounts for the separate elements of relief requested, including an amount for each variance. In no case shall the escrow deposit required at the time of the application exceed $20,000. The amount of any unexpended escrow deposits for informal review shall be a credit toward fees for review of the application for development. The application shall be deemed incomplete if the fees and deposit are not paid. Whether or not specifically stated in the resolution of memorialization, payment in a timely manner of all escrow fees which become due shall be a condition of the approval of any application.

B. Use of fees and deposits. The application charge is a flat fee to cover direct administrative expenses and is nonrefundable. The escrow deposit is established to cover the costs of professional services, including engineering, legal, planning, traffic, landscape architecture, environmental, historic preservation, and other expenses in connection with the review of the submitted materials, including the hearings thereon, review of revised plans, review to ensure that conditions have been satisfied, and all other application follow-up. Sums not utilized in the review process shall be returned to the developer.

C. Insufficient funds and municipal remedies therefor. If an escrow account contains insufficient funds to enable the Borough or Planning Board to complete required application reviews, including follow-up as to documents and conditions, the Treasurer shall provide the applicant with a notice of insufficient escrow 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 Borough or Planning Board and the applicant. In the interim, any required health and safety inspections shall be made and charged against the replenishment of funds. The time to act under the Municipal Land Use Law shall be tolled during the time when there has been no municipal action because the applicant has not posted the additional escrow deposit provided for in this subsection. If at the time of decision the applicant is in default of any required escrow payments or fees, the Planning Board shall deny the application. No building permits or certificates of occupancy shall be issued until all such escrow funds have been paid. All escrow charges which are due and owning shall become a lien on the premises with respect to which said charges are required and shall remain so until paid. Said overdue charges shall accrue the same interest from time to time as taxes upon real estate in the Borough. The Borough shall have the same remedies for the collection thereof with interest, costs, and penalties as it has by law for the collection of taxes upon real estate. The applicant shall be responsible for all costs of collection of unpaid fees, including reasonable attorneys' fees.

D. Periodic accounting of escrow funds and expenditures. The Treasurer shall prepare and sent to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, and 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.

E. Closeout procedures. The applicant shall send written notice by certified mail to the Treasurer, to the Planning Board, and to the municipal professionals who worked on the application review that the Planning Board has granted final approval; that, in the case of subdivisions or site plans, the subdivision or site plan has been signed by the Planning Board; and that, in the case of all other applications for approvals for which escrow deposits are necessary, the approval has been perfected and no further review by municipal professionals is necessary. After receipt of said notice, each professional shall render a final bill to the Treasurer within 30 days and shall send a copy simultaneously to the applicant. The Treasurer 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 from the professionals. Any balances remaining in the escrow account, including interest, shall be refunded to the applicant along with the final accounting.

F. Schedule of application fees and escrow deposits.

[Amended 7-19-2010 by Ord. No. 3-2010; 9-21-2020 by Ord. No. 2020-02]

					Application Charge	Escrow Deposit
	1.	Subdivision plats
		a.	Informal concept review
			Minor plats		$200	$800
			Major plats		$300	$1,000
		b.	Minor plat		$300	$2,000
		c.	Preliminary major plat		$700	$4,000
		d.	Final major plat		$360	$2.000
		e.	Plat revisions
			Minor plat		$150	$1,000
			Preliminary major plat		$300	$2,000
			Final major plat		$180	$1,000
		f.	Amendment to Tax Map		$150 per lot	None
	2.	Site plans
		a.	Informal concept review
			Minor plans		$200	$800
			Major plans		$300	$1,000
		b.	Minor plans		$350	$1,500
		c.	Preliminary major plans
			(a)	Residential	$600	$1,500
			(b)	Nonresidential	$600	$2,000
		d.	Final plans
			(a)	Residential	$300	$750
			(b)	Nonresidential	$300	$1,000
		e.	Waiver of site plan		$175	$1,500
		f.	Modification of approved site plan		$200	$1,000
	3.	Preservation plans
		a.	Concept review		None	None
		b.	Minor plans
			(a)	Processed by the Historic Preservation Subcommittee	$25	None
			(b)	Planning Board hearing	$25	$500
		c.	Major plans		$75	$1,000
	4.	Other submissions
		a.	Appeal of Zoning Officer's decision (N.J.S.A. 40:55D-70a)		$200	$1,000
		b.	Interpretation of ordinances (N.J.S.A. 40:55D-70b)		$200	$1,000
		c.	Bulk variances (N.J.S.A. 40:55D-70c)
			(a)	Residential	$200	$1,000
			(b)	Nonresidential	$275	$1,000
		d.	Use variances (N.J.S.A. 40:55D-70d)
			(a)	Residential	$250	$3,000
			(b)	Nonresidential	$500	$3,000
		e.	Permits (N.J.S.A. 40:55D-34 and 35)		$250	$750
		f.	Conditional uses (N.J.S.A. 44:55D-67)			1,000
			(a)	Residential	$200	$1,000
			(b)	Nonresidential	$400	$1,000
	5.	Appeal to Borough Council			$75	None
	6.	Certification of lawful nonconformity (N.J.S.A. 44:55D-68)			$150	$1,500
	7.	Extension of vesting period			$100	$600
	8.	Master Plan or zoning change			$300	$3,000
	9.	Zoning permit			$500	$20,000
		a.	Residential
			(a)	New single-family	$250	None
			(b)	Additions	$50	None
			(c)	Pools	$50	None
			(d)	Home occupations	$50	None
			(e)	Decks and patios	$30	None
			(f)	Fences	$25	None
			(g)	Sheds	$25	None
			(h)	Standard zoning permit (if none of the above)	$25	None
		b.	Nonresidential
			(a)	Business occupations	$50	None
			(b)	Signs (reface existing sign)	$50	None
			(c)	Standard zoning permit (if none of the above)	$30	None
	10.	Performance guarantee, inspection fees and maintenance guarantees are as outlined in § 80-15, Guarantees and inspections, in Article IV.

§ 80-8 Compliance.

A. All zoning requirements shall be met at the time of any erection, enlargement, moving, or change in use. If a new structure is added to an existing complex of structures or if an existing structure has an addition, the site plan provisions of this chapter shall apply to the enlargement or new structure.

B. All developments resulting from subdivision and site plan approvals shall comply with all the design and performance standards, including conditions imposed by the approving authority, as shown on the approved plat and/or included in the resolution adopted by the approving authority.

§ 80-9 Conditional approval.

Regulation of the development of land and the attachment of reasonable conditions to development applications is an exercise of valid police power delegated by the state to the Borough. The applicant has the duty of compliance with reasonable conditions laid down by the approving authority for design, dedication, improvements, and the use of the land so as to conform to the physical and economical development of the municipality and to the safety and general welfare of the future residents and/or owners in the development and in the community at large. Where county Planning Board review or approval is required on a subdivision or site plan, the approving authority shall condition any approval it grants upon either timely receipt of a favorable report by the county Planning Board or approval by the county Planning Board due to its failure to submit a report within the required time period. If the county's report is negative or attaches conditions, the original action by the municipal approving authority shall be null and void and a new resolution shall be adopted which considers the county Planning Board's report.

§ 80-10 Conditional uses.

A. Before any permit shall be issued for a conditional use, application shall be made to the Planning Board. The Planning Board shall grant or deny the application after public hearing, but within 95 days of the date the application is deemed complete or within such further time as may be consented to by the applicant. Where a conditional use application involves a site plan or subdivision, the Planning Board shall review and approve or deny the subdivision or site plan simultaneously with the conditional use application. Failure of the Planning Board to act within the ninety-five-day period shall constitute approval of the application. In reviewing the conditional use application, the Planning Board shall review the number of employees or users of the property and the requirements set forth in the ordinance and shall give due consideration to all reasonable elements which would affect the public health, welfare, safety, comfort and convenience such as, but not limited to, the proposed use(s), the character of the area, vehicular travel patterns and access, pedestrian ways, landscaping, lighting signs, drainage, sewage treatment, potable water supply, utilities, and structural location(s) and orientation(s). The Planning Board shall conduct a public hearing on the application. The use for which conditional uses are granted shall be deemed to be permitted uses in their respective districts, and each conditional use shall be considered as an individual case. In all requests for approval of conditional uses the burden of proof shall be on the applicant. All conditional uses shall require site plan approval by the Planning Board, except that an application for an affordable accessory apartment shall require minor site plan approval and further that, in the case of a home occupation, site plan approval shall be required only if additional parking or other exterior modifications are proposed or are required by a condition of approval.

[Amended 6-15-2009 by Ord. No. 8-2009]

B. In granting conditional uses, a time limit of one year from the date of adoption of the resolution memorializing the approval shall be set, within which time the owner shall secure a building permit; otherwise the approval shall be null and void.

C. When applying for conditional use authorization for a home occupation, the applicant shall provide the following information in addition to the information required if site plan approval is sought:

(1) Survey, sketch, or photograph showing general location of existing structures, parking areas, and driveways, with distances from property lines and residential structures on adjoining lots.

(2) Floor plans or sketch identifying the portion of the structure which is proposed to be devoted to the home occupation.

(3) Description of the home occupation, including nature of the business, expected frequency of visitors, equipment used, sounds and odors emitted, volume and frequency of mail and deliveries expected, inflammable, hazardous, and toxic material to be used and proposed notification with respect thereto, waste generated, and hours of operation.

D. An owner of a property for which conditional use authorization for a home occupation was secured by a prior owner may continue such operation, provided that there is no change in the nature, magnitude, location, or any other aspect of the home occupation originally approved and that he complies with all conditions of approval, and further provided that, in the case of a lawful nonconforming home occupation, such home occupation has not been abandoned since it became nonconforming. The subsequent owner shall register his home occupation on such form as the Borough shall provide and shall provide details sufficient to demonstrate that it conforms in all respects to the home occupation originally approved, including the conditions of approval. A fee of $50 shall be charged for the registration.

§ 80-11 When effective.

This chapter shall take effect upon its final passage and publication according to law.

§ 80-12 Enforcing officers.

[Amended 11-18-2013 by Ord. No. 7-2013; 2-23-2022 by Ord. No. 2022-01]

It shall be the duty of the Zoning Officer to administer and enforce the zoning provisions of this chapter. No building permit shall be issued unless the plans are accompanied by an approved zoning permit. No zoning permit shall be issued unless the proposed structure, use, temporary activity, and construction activities are in compliance with this chapter. In cases involving the new use of an existing structure, no certificate of occupancy for the new tenant shall be issued until a zoning permit has been issued. To ensure compliance with the provisions of this chapter, no person shall erect, alter or convert any structure or building or part thereof, nor alter the use of any land, until the proper zoning permit has been issued by the Zoning Officer.

§ 80-13 Exceptions.

The approving authority, when acting upon application for preliminary or minor subdivision approval and preliminary site plan approval, shall have the power to grant such exceptions from the design and performance standards in Article VI of this chapter as may be reasonable and within the general purpose and intent of the provisions for subdivision/site plan review and approval if the literal enforcement of one or more provisions of this chapter is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.

§ 80-14 Exemptions from subdivisions and site plan regulations.

Divisions of land not considered a subdivision as defined in this chapter and exempt site plans shall be exempt from compliance with the subdivision and site plan requirements of this chapter respectively only after affirmative action by the approving authority determining that the division is not considered a subdivision, as defined in this chapter, or that the site plan meets the definition of exempt site plan. Such action shall be taken following submission of sufficient documentation for the approving authority to make such determination. Until exempted from the subdivision regulations by the approving authority, no person shall transfer, sell, or unconditionally agree to transfer or sell, as owner or agent, any land which forms a part of a subdivision for which approval is required. Until exempted from the site plan regulations by the approving authority, no alterations, as described in § 80-27 of this chapter, shall be made, nor permits issued.

§ 80-15 Guarantees and inspections.

[Amended 9-21-2020 by Ord. No. 2020-03]

A. Before filing a final subdivision plat or recording a minor subdivision deed or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to Subsection d. of N.J.S.A. 40:55D-65, a developer shall furnish a performance guarantee, and provide for a maintenance guarantee in accordance with Subsections B and C of this section.

B. Guarantees.

(1) The developer shall furnish a performance guarantee in favor of the Borough in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval granted by the approving authority or a developer's agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed, which cost shall be determined by the Municipal Engineer, according to the method of calculation set forth in Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), for the following improvements as shown on the approved plans or plat: streets, pavement, gutters, curbs, sidewalks, street lighting, street trees, surveyor's monuments, as shown on the final map and required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.; repealed by Section 2 of P.L. 2011, c. 217) or N.J.S.A. 46:26B-1 through N.J.S.A. 46:26B-8, water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements. A successor developer must furnish a replacement performance guarantee, as a condition to the approval of a permit update under the State Uniform Construction Code, for the purpose of updating the name and address of the owner of property on a construction permit, The Municipal Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

(2) A performance guarantee shall include, within an approved phase or section of a development privately-owned perimeter buffer landscaping, as required by Borough ordinance or imposed as a condition of approval. At the developer's option, a separate performance guarantee may be posted for the privately-owned perimeter buffer landscaping.

(3) In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a temporary certificate of occupancy guarantee, in favor of the Borough in an amount equal to 120% of the cost of installation of only those improvements or items which remain to be completed or installed under the terms of the temporary certificate of occupancy and which are required to be installed or completed as a condition precedent to the issuance of the permanent certificate of occupancy for the development, unit, lot, building or phase of development and which are not covered by an existing performance guarantee. Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee, required pursuant to Subsection B(1) of this section, which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. The scope and amount of the temporary certificate of occupancy guarantee shall be determined by the Municipal Engineer or other municipal official designated by ordinance. At no time may the Borough hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy guarantee shall be released by the Municipal Engineer, or other municipal official designated by ordinance, upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.

(4) A developer shall furnish to the Borough a safety and stabilization guarantee, in favor of the Borough. At the developer's option, a safety and stabilization guarantee may be furnished either as a separate guarantee or as a line item of the performance guarantee required by Subsection B(1) of this section. A safety and stabilization guarantee shall be available to the Borough solely 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, only in the circumstance that:

(a) 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

(b) Work has not recommenced within 30 days following the provision of written notice by the Borough to the developer of the Borough's intent to claim payment under the guarantee. The Borough shall not provide notice of its intent to claim payment under a safety and stabilization guarantee until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. The Borough shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.

(5) The amount of a safety and stabilization guarantee for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000. The amount of a safety and stabilization guarantee for a development with bonded improvements exceeding $100,000 shall be calculated as $5,000 for the first $100,000 of bonded improvement costs, plus 2 1/2% of bonded improvement costs in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement costs in excess of $1,000,000.

(6) The Borough shall release a separate safety and stabilization guarantee to a developer upon the developer's furnishing of a performance guarantee which includes a line item for safety and stabilization in the amount required under this section. The Borough shall release a safety and stabilization guarantee upon the Municipal Engineer's determination 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.

C. The developer shall post with the Borough, prior to the release of a performance guarantee required pursuant to Subsection B of this section, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.

(1) If required, the developer shall post with the Borough, upon the inspection and issuance of final approval of the following private site improvements by the Municipal Engineer, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the outflow pipes and structures of the stormwater management system, if any, which cost shall be determined according to the method of calculation set forth in section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D53.4).

(2) The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the end of the established term.

D. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Borough for such utilities or improvements.

E. The time allowed for installation of the bonded improvements for which the performance guarantee has been provided may be extended by the governing body 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 the installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4) as of the time of the passage of the resolution.

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

G. List.

(1) 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 governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B of this section, a list of all uncompleted or unsatisfactory completed bonded improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon the Municipal Engineer shall inspect all bonded improvements covered by obligor's request and shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.

(2) The list prepared by the Borough Engineer shall state, in detail, with respect to each bonded 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 bonded improvement determined to be unsatisfactory. The report prepared by the Municipal Engineer shall identify each bonded 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 bonded improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B of this section.

H. Approval or rejection of improvements.

(1) The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Municipal Engineer, or reject any or all of these bonded improvements upon the establishment in the resolution of cause for rejection, 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 Municipal Engineer and appended to the performance guarantee pursuant to Subsection B of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved bonded 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 total performance guarantee and safety and stabilization guarantee posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guarantee shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction. For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the Borough may retain 30% of the amount of the total performance guarantee and safety and stabilization guarantee to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a temporary certificate of occupancy guarantee has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the Borough below 30%.

(2) If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection H(1) of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Municipal Engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party. If the governing body fails to approve or reject the bonded improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(3) 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, provided that if the developer has furnished a safety and stabilization guarantee, the Borough may retain cash equal to the amount of the remaining safety and stabilization guarantee.

I. If any portion of the required bonded improvements is rejected, the governing body 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.

J. Inspection fees.

(1) The obligor shall reimburse the Borough for reasonable inspection fees paid to the Municipal Engineer for the inspection of improvements; which fees shall not exceed the sum of the amounts set forth in Subsection J(1)(a) and (b) of this section. The Borough may require the developer to post the inspection fees in escrow in an amount:

(a) Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements that are subject to a performance guarantee under Subsection B of this section; and

(b) Not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee under Subsection B of this section, which cost shall be determined pursuant to section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).

(2) For those developments for which the inspection fees total less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees.

(3) For those developments for which the inspection fees total $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited in escrow by a developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.

(4) If the Borough determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsection J(1)(a) and (b) is insufficient to cover the cost of additional required inspections, the Borough may require the developer to deposit additional funds in escrow provided that the Borough delivers to the developer a written inspection escrow deposit request, signed by the Municipal Engineer, which informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimates the time required for those inspections, and estimates the cost of performing those inspections.

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

L. To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the governing body shall be deemed, upon the release of any performance guarantee required pursuant to Subsection B 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 Municipal Engineer.

M. No work shall be done without permission from the Municipal Engineer. A representative of the Municipal Engineer's office shall, at the option of the Municipal Engineer, be present at the time all work is performed. No underground installation shall be covered until inspected and approved. The Municipal Engineer's office shall be notified after each of the following phases of the work has been completed so that it may be inspected: road subgrade; curb and gutter forms; curbs and gutters; road paving (after each coat in the case of priming and sealing); drainage pipes and other drainage structures before backfilling shade trees and planting and strips; street names signs; and monuments. Electrical, gas, telephone and all other utility installations installed by utility companies shall not be subject to the inspection requirements contained herein.

§ 80-16 Inconsistent ordinances repealed.

[Amended 6-17-1996 by Ord. No. 6-1996]

All ordinances or parts of ordinances which are inconsistent with the provisions of this chapter are hereby repealed to the extent of such inconsistency. Upon the adoption of this chapter according to law, all previously adopted subdivision, site plan and zoning ordinances and their amendments are repealed.

§ 80-17 Inspections.

See § 80-15, Guarantees and inspections, in Article IV.

§ 80-18 Interpretation.

A. The provisions of this chapter shall be held to be minimum requirements. Where this chapter establishes both minimum and maximum standards, both standards shall be met even though the combination of standards may not permit development to take advantage of all standards simultaneously. Where any provision of this chapter imposes restrictions different from those imposed by any other provision of this chapter or any other ordinance, rule or regulation, or other provision of law, whichever provisions are more restrictive or impose higher standards shall control.

B. Zoning district boundary lines are intended to follow street center lines, streams and lot or property lines unless otherwise indicated by dimensions on the Zoning Map. Any dimension shown shall be in feet, measured horizontally and measured from the street right-of-way line even if the center line of that street serves as a zoning district line. The location of any disputed zoning district line shall be determined by the Board of Adjustment. Zoning district lines extend vertically in both directions from ground level.

C. Where a zoning district line divides a lot, the zoning district line may be modified by the owner by moving the zoning district line up to the property line provided the property line is within 20 feet of the zoning district line as shown on the Zoning Map. A use permitted in the zoning district so extended shall thereafter be a permitted use in the extended area. A zoning district line shall be altered only once by utilizing this section of this chapter, after which the use shall be governed by the district in which it is located after the adjustment.

§ 80-19 Zoning permits, building permits and certificates of occupancy.

A. No zoning permit, building permit, or certificate of occupancy shall be issued for any parcel of land or structure which was sold or on which improvements were undertaken in violation of the provisions of this chapter or for use of a lot which was created by subdivision after the effective date of and not in conformity with the provisions of this chapter. No site improvements such as, but not limited to, excavation or construction of public or private improvements shall be commenced except in conformance with this chapter in accordance with plat approvals and the issuance of required permits.

B. A zoning permit shall be issued by the Zoning Office before the issuance of either a certificate of occupancy to a new occupant of an existing building or portion of an existing building, or before the issuance of a building permit.

C. It shall be unlawful to use or permit the use of any building or part thereof hereafter created, erected, changed, converted, altered or enlarged, wholly or in part, until a certificate of occupancy shall have been issued by the Building Inspector and no certificate shall be issued unless the land, building and use thereof comply with this chapter; all matters incorporated on the approved subdivision or site plan have been completed and certified by the Municipal Engineer, and the building and health codes are complied with.

D. Each request for a zoning permit and a certificate of occupancy shall be accompanied by a certified check or bank money order payable to the Borough of Rocky Hill in the amount specified by the fee schedule found in § 80-7.

[Amended 9-21-2020 by Ord. No. 2020-02]

E. No zoning permit, building permit or certificate of occupancy shall be issued or approval granted by the approving authority if taxes or assessments for local improvements are due or delinquent on the property for which any application is made.

F. To ensure compliance with the provisions of this chapter, no person shall erect, alter or convert any structure or building or part thereof, nor alter the use of any land, until the proper zoning permit has been issued by the Zoning Officer.

[Added 2-23-2022 by Ord. No. 2022-01]

§ 80-20 Planning Board.

A. Establishment.

(1) There is hereby established pursuant to c. 291, P.L. 1975[1] in the Borough of Rocky Hill a Planning Board of nine members consisting of the following four classes:

(a) Class I: Mayor.

(b) Class II: one of the officials of the municipality other than a member of the governing body to be appointed by the Mayor; provided that if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Planning Board member if there is both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV members.

(c) Class III: one member of the Borough Council to be appointed by Borough Council.

(d) Class IV: six other citizens of the municipality to be appointed by the Mayor.

[1] Editor's Note: See N.J.S.A. 40:55D-23 et seq.

(2) The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be a Class IV Planning Board member unless there be among the Class IV members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be a Class II member of the Planning Board.

B. Terms.

(1) The term of the member composing Class I shall correspond with his official tenure. The terms of the members composing Class II shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his term of office as a member of the Environmental Commission, whichever occurs first.

(2) The term of a Class IV member who is also a member of the Board of Adjustment or the Board of Education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first.

(3) The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of such term shall be distributed evenly over the first four years after their appointment as determined by resolution of the governing body; provided, however, that no term of any member shall exceed four years, and further provided that nothing herein shall affect the term of any present member of the Planning Board, all of whom shall continue in office until the completion of the terms for which they were appointed. Thereafter all Class IV members shall be appointed for terms of four years except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.

C. Vacancies. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.

D. Power and duties.

(1) The Planning Board shall exercise the following powers and have the following duties:

(a) To make, adopt and amend a Master Plan for the physical development of the municipality pursuant to the provisions of N.J.S.A. 40:55D-28.

(b) To administer the subdivision and site plan provisions of this chapter.

(c) To approve conditional use applications as authorized by the Municipal Land Use Law, as amended, and by § 80-10 of this chapter.

(d) Upon authorization of Borough Council, to prepare a capital improvement program in the manner set forth in N.J.S.A. 40:55D-29 and to refer same to Borough Council as per N.J.S.A. 40:55D-31.

(e) To review and make recommendations on such matters as the location, character, or extent of capital projects in accordance with N.J.S.A. 40:55D-31 to the governing body or other public agency having jurisdiction on capital projects necessitating the expenditure of public funds.

(f) In reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant variances described in Subsection D(1)(k)[3], and direct the issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved on the Official Map, or pursuant to N.J.S.A. 40:55D-36 for a building or a structure not related to a street. Whenever relief is requested pursuant to this subsection, notice of the hearing on the application for development shall include reference to the request for variance or direction of issuance of a permit, as the case may be. The developer may elect to submit a separate application requesting approval of the variance or direction for the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance or direction for the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Planning Board. No such subsequent approval shall be granted unless the approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and this chapter. Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for a variance or the issuance of a permit, the Planning Board shall grant or deny approval of the application within 120 days after the application is deemed complete or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance or direction for issuance of a permit. The period for granting or denying and subsequent approval shall be as otherwise provided. Failure of the Planning Board to act within this period shall constitute approval of the application.

(g) To participate in the presentation and review of programs or plans required by state or federal law or regulations.

(h) To assemble data on a continuing basis as part of a continuous planning process.

(i) To consider and report to the governing body within 35 days after referral of any proposed development regulation submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26a, such report to include identification of any provisions of the proposed development regulations which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters the Board deems appropriate, and to pass upon other matters referred to it by the governing body pursuant to the provision of N.J.S.A. 40:55-26b.

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

(k) To exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment, including the powers to:

[1] Hear and decide, by majority vote, appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of this chapter. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken. The Board may reverse or affirm, wholly or in part, or may modify the action, order, requirement, decision, interpretation or determination appealed from and to that end have all the powers of the administrative officer from whom the appeal is taken. If, in the case of an appeal, the Planning Board determines that there is an error in any order, requirement, decision or refusal made by the administrative officer pursuant to a report submitted by the Board in accordance with § 80-40C(1), it shall include the reasons for its determination in the findings of its decision thereon.

[2] Hear and decide by majority vote requests for interpretation of the Zoning Map or ordinance, or for decisions upon other special questions upon which such board is authorized to pass.

[3] On applications not involving subdivisions, site plans, or conditional use authorizations, grant by majority vote a variance from the strict application of any zoning regulations: (2)

[a] Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of such regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property so as to relieve such difficulties or hardship; or

[b] where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement and the benefits of the deviation would substantially outweigh any detriment.

[4] In particular cases and for special reasons, grant a variance to allow departure from zoning regulations to permit a use or principal structure in a district restricted against such use or principal structure, an expansion of a nonconforming use, deviation from a specification or standard pertaining solely to a conditional use, an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4, or an increase in the permitted density as defined in N.J.S.A. 40:55D-4, except as applied to the required lot area for a lot or lots for detached one- or two-dwelling-unit buildings which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision. A variance under this subsection shall be granted only by affirmative vote of at least five members. The Class I and Class III members shall not participate in the consideration of applications for development which involve relief pursuant to this subsection.

[5] Direct the issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in a the bed of a mapped street or public drainage way, flood control basin or public area reserved on the Official Map or pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.

(l) To exercise, to the same extent and subject to the same restrictions, all of the powers of a historic preservation commission, including the powers to:

[Amended 11-18-2013 by Ord. No. 7-2013]

[1] Prepare a survey of historic sites in the Borough of Rocky Hill pursuant to criteria identified in the survey report;

[2] Act on applications for preservation plan approval, including such applications when filed in conjunction with applications for development, in the manner set forth in § 80-40;

[3] Maintain a collection of preservation materials to assist applicants in complying with the provisions of § 80-95;

[4] Carry out such other advisory, educational and informational functions as will promote historic preservation in the Borough of Rocky Hill;

[5] Ensure that the master plan includes the historic preservation element and analyses required by N.J.S.A. 40:55D-109b, as may be amended from time to time;

[6] Provide advice on the inclusion of historic sites in a recommended capital improvement program;

[7] Act on applications for development pursuant to N.J.S.A. 40:55D-110, as may be amended from time to time, and as provided within the Borough's Historic Preservation ordinance, and;

[8] Appoint annually the members of the Historic Review Subcommittee that consists of the Chairman of the Planning Board, the Borough Zoning Officer and one or two other members of Planning Board to act on minor preservation plans as specified in § 80-40C.

(2) No variance or other relief may be granted under the provisions of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. With respect to an airport safety zone delineated under the Air Safety and Zoning Act of 1983, N.J.S.A. 6:1-80 et seq., no variance or other relief may be granted under the terms of the sections permitting the creation or establishment of a nonconforming use which would be prohibited under the standards promulgated pursuant to that act except conditioned upon issuance of a permit by the Commissioner of Transportation.

(3) Unless a longer period is consented to by the applicant, the Board shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administration officer, or not later than 120 days after the submission of a complete application for development without prior application to the administration officer. If the developer elects to submit pursuant to this subsection separate consecutive applications for a Subsection D(1)(k)[4] variance followed by subdivision, site plan or conditional use applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter. Failure of the Board to render a decision within the period prescribed or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant, and a certificate of the administrative officer as to the failure of the Board to act shall be issued on request of the applicant. It shall be sufficient in lieu of the written endorsement or other evidence of approval herein required and shall be so accepted by the county recording officer for purposes of filing subdivision plats.

(4) In the granting of Subsection D(1)(k)[3] and [4] d variances, a time limit of one year from the date of the variance approval shall be set than which time the owner shall secure a building permit. Otherwise the variance granted shall be null and void.

(5) Whenever an applicant shall request a Subsection D(1)(k)[4] variance, the Board shall have the power to grant subdivision, site plan, or conditional use approval in conjunction with its action on such variance and may impose restrictions on the subdivision, site plan or conditional use approvals. The applicant may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan, or conditional use. The separate approval of a use variance shall be conditioned upon grant of all required subsequent approvals by the Board. No such subsequent approvals shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. The number of votes of groundwater members required to grant any subsequent approval shall be as otherwise provided for in this chapter for the approval in question, and the special vote as provided for in the subsection shall not be required.

§ 80-21 Prohibited uses.

[Amended 7-19-2021 by Ord. No. 2021-11]

All uses not expressly permitted in this chapter are prohibited. Specifically, all classes of cannabis establishments or cannabis distributors or cannabis delivery services as said terms are defined in Section 3 of P.L. 2021, c. 16, but not the delivery of cannabis items and related supplies by a delivery service.

§ 80-22 Preservation permits.

A. Requirements.

[Amended 8-16-1999 by Ord. No. 6-1999; 11-18-2013 by Ord. No. 7, 2013]

(1) Covered acts. The following activities shall require a historic preservation permit:

(a) Constructing, altering or restoring structures within the Historic Preservation District, except as exempted below;

(b) Constructing, altering or restoring site improvements on lots within Historic Preservation District, except as exempted below;

(c) Moving structures into or within the Historic Preservation District; and

(d) Demolishing all or part of a structure in the Historic Preservation District.

(2) Exempted acts. The following activities are exempt from historic preservation review and do not require a historic preservation permit:

(a) Ordinary maintenance as defined in § 80-3 of this chapter;

(b) Painting and/or changing the paint color of any surface that was previously painted;

(c) Interior construction; and

(d) Construction, alteration, or restoration of a structure if the proposed activities will not be visible from a public or private street.

B. Effective life. The preservation permit shall lapse 12 months after the date of its issuance unless prior thereto a building permit for the work authorized by the permit is secured or the time is extended by the Planning Board. If a building permit secured in a timely manner thereafter lapses, the preservation permit shall lapse as well.

C. Enforcement.

(1) Inspections: Cease-and-desist orders. All work performed pursuant to a preservation permit shall conform to the application and accompanying documents for which the preservation permit was granted except as otherwise conditioned by the permit. The Zoning Officer shall from time to time inspect any work performed pursuant to such permit to assure such compliance and shall have the right to enter upon the premises at any reasonable time for the purpose of making inspections. In the event work is not being performed in accordance with the permit, or that work for which a preservation permit is required is being performed without such permit, the Zoning Officer shall issue a cease-and-desist order and serve it forthwith upon the owner of the property or the person performing such work. Upon receipt of such order, the owner of the property or the person performing such work shall forthwith cease from performing any further work.

(2) Injunctive relief. In case any work is undertaken in violation of this section or in case such violation is threatened, or in case a property owner or the person performing such work fails to obey a cease-and-desist order, the Zoning Officer or the Borough Council, in addition to the other remedies set forth in this section, may institute an action in a court of competent jurisdiction to restrain, correct, or abate such violation or to prevent any illegal act, conduct, or work. Any interested party may also bring such an action.

(3) Penalties. Any person violating any of the provisions of this section shall be subject the penalties set forth in § 80-31.

§ 80-23 Provisions applicable to Planning Board.

A. Organization of Board. The Planning Board shall elect a chair from its membership and vice-chair from the members of Class IV and shall elect a secretary, who may not be a member.

B. Attorney. There is hereby created the office of Planning Board Attorney. The Planning Board may annually appoint and fix the compensation of its attorney who shall be an attorney other than the municipal attorney.

C. Experts and staff. The Planning Board may employ or contract for the services of experts and other staff and services as they may deem necessary, including a secretary. The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.

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

E. Conflicts of interest. No member of the Planning Board shall act on any matter in which he or any immediate family member has either directly or indirectly any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the Board on the hearing of such matter nor participate in any groundwater discussion or decision relating thereto.

F. Meetings.

(1) Meetings of the Planning Board shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process. Special meetings may be provided for at the call of the chair or on the request of any two Board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.

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

(3) All actions shall be by majority vote of the members of the Board present at the meeting except as otherwise required by § 80-20D(1)(k)[4] of this chapter. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application.

(4) All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Law, Chapter 231, Laws of N.J. 1975.[1]

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

G. Minutes. Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the person appearing by attorney, the actions taken by the Board, the findings, if any, made by it, and the reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the municipal Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceeding concerning the subject matter of such minutes. Such interested parties may be charged a fee for the reproduction of the minutes for his use as provided for in the rules of the Board.

H. Hearings.

(1) Rules. The Planning Board may make rules governing the conduct of hearings before such bodies which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.

(2) Oaths. The officer presiding at the hearing or such person as he may designate shall have power to administer oaths or issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the county and Municipal Investigations Law (N.J.S.A. 2A:67A-1 et seq.) shall apply.

(3) Testimony. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer and the right of cross examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to the time and number of witnesses.

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

(5) Records. The Planning Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense. The charge for a copy of a transcript shall not be more than the maximum permitted by N.J.S.A. 2A:11-15,[2] and the transcript shall be certified in writing by the transcriber to be accurate.

[2] Editor's Note: Said statute was repealed by P.L. 1991, c. 119; see now N.J.S.A. 2B:7-4 et seq.

(6) Voting eligibility. A member of the Board who was absent for one or more of the meetings shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearing from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.

§ 80-24 Public hearings and notice.

A public hearing shall be held on each application for development and each application for exemption from the subdivision or site plan requirements pursuant to § 80-14 of this chapter. All public hearing dates shall be set by the approving authority. All public hearings conducted on such applications shall follow the requirements of this section and any other requirements of the Municipal Land Use Law, as amended.

A. Any maps and documents submitted for approval shall be on file and available for public inspection at least 10 days before the hearing date during normal business hours in the office of the Borough Clerk.

B. The approving authority shall provide for the verbatim recording of the proceedings by either stenographic, mechanical or electronic means.

C. The Planning Board shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. It shall provide the findings and conclusions through:

(1) A resolution adopted at a meeting held within the time period provided for action by the Board 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 Board voted to grant or deny approval. Only the members of the Board who voted for the action taken may vote on the memorializing resolution, and the vote of the majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board; 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 Subsections D and E. If the Board 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 Board to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorneys' fees, shall be assessed against the Borough.

D. A copy of the decision shall be mailed by the Board 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 Board in the office of the administrative officer. The administrative officer shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at his office during reasonable hours.

E. A brief notice of the decision shall be published in the official newspaper or a newspaper of general circulation in the Borough. Such publication shall be arranged by the Borough Clerk, provided that the applicant may arrange such publication if he so desires. The Borough may make a reasonable charge for its publications. 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 Borough or the applicant.

F. Notice shall be given for hearings on all applications for development except for final subdivision approval. No notice shall be required on applications for exemptions from the subdivision or site plan requirements pursuant to § 80-14 of this chapter and on submissions for informal review of concept plans pursuant to § 80-34 of this chapter. All notices shall state the date, time and place of the hearing, the nature of the matters to be considered and an identification of the property proposed for development by street addresses, if any, or by reference to lot and block numbers and the location and times at which any maps and documents are available for public inspection. All required notices shall be the responsibility of the applicant and shall be given at least 10 days prior to the hearing date.

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

(2) Required notices shall be given to the owner 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. This notice shall be given by either serving a copy thereof on the property owner as shown on the current tax duplicate or his agent in charge of the property, or mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate.

(3) Required notices to a partnership owner may be made by service upon any partner. Required notices to a corporate owner may be made by service upon its president, a vice president, a secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Required notices to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners, or homeowners on account of such common elements or areas.

(4) Required notices of all hearings on application 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.

(5) Required notices shall be given by personal service or certified mail to the County Planning Board where the hearing concerns a property adjacent to an existing county road or proposed road shown on the official county map or on the county master plan, adjoining other county land, or situated within 200 feet of a municipal boundary; to the Commissioner of Transportation where the hearing concerns a property adjacent to a state highway; to the director of the State Planning Commission where the hearing concerns a property which exceeds 150 acres or exceeds 500 dwelling units, and the notice shall include a copy of any maps or documents required to be on file with the administrative officer.

(6) Required notice for hearings on applications for approval of major subdivisions or of site plans not deemed as minor site plans shall be given by personal service or certified mail to any public utility, cable television company, or local utility which possesses a recorded right-of-way or easement within the Borough and which has registered with the Borough in the manner provided by law. Such notice shall be given to the person whose name appears on the registration form.

G. The applicant shall file an affidavit of proof of service with the Planning Board. Any notice made by certified mail shall be deemed complete upon mailing.

§ 80-25 Registration by public utility, cable television company, or local utility.

A. Every public utility, cable television company and local utility interested in receiving notice pursuant to N.J.S.A. 40:55D-12h may register with the Borough if it has a right-of-way easement within the Borough. The registration shall remain in effect until revoked by the public utility, cable television company or local utility or by its successor in interest.

B. The administrative officer shall adopt a registration form and shall maintain a record of all public utilities, cable television companies and local utilities which have registered with the Borough pursuant to Subsection A of this section. The registration form shall include the name of the public utility, cable television company or local utility and the name, address and position of the person to whom notice shall be forwarded.

C. The Borough Clerk shall impose a fee of $10 for the initial registration and $5 for any reregistration on any public utility, cable television company or local utility which registers to receive notice pursuant to Subsection A of this section.

§ 80-26 Continuation of prior provisions.

These regulations shall not be construed as abating any action now pending under, or by virtue of, prior existing subdivision, site plan or zoning regulation, or as discontinuing, abating, modifying, or altering any penalty accruing or about to accrue, or as affecting the liability of any person, firm, or corporation, or as waiving any right of the municipality under any section or provision existing at the time of adoption of this chapter, or as vacating or annulling any rights obtained by any person, firm or corporation, by lawful action of the municipality except as shall be expressly provided for in this chapter.

§ 80-27 Site plan approval required.

Except in accordance with final approval of a site plan granted pursuant to this chapter, unless exempted in accordance with § 80-14:

A. A structure shall not be erected, relocated, enlarged, or externally altered or reconstructed;

B. The use of a structure shall not be changed, except that, in the case of a home occupation, site plan approval shall not be required only if additional parking or other exterior modifications are proposed;

C. A structure shall not be internally altered or reconstructed or its occupancy changed when such alteration, reconstruction or change in occupancy has parking, circulation or other external affects or increases the intensity of use of a structure or a part thereof;

D. Land shall not be changed;

E. A watercourse shall not be diverted or its channel or floodplain dredged or filled;

F. An open parking area, accessory or otherwise, shall not be constructed, installed, or enlarged; and

G. A permit shall not be issued with respect to any such structure, land or parking area.

§ 80-28 Use variance applications.

Any appeal for a variance to allow a structure or use in a district restricted against such structure or use shall have three copies of all supporting documents and the application filed with the administrative officer.

§ 80-29 Vacating street or other public way.

Where a street or public way serves as the zoning district line and it is lawfully vacated, the former center line shall be considered the zoning district line.

§ 80-30 Validity.

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

§ 80-31 Violations and penalties.

A. In case any building or structure is erected, constructed, altered, repaired, converted or maintained, or any building, structure or land is used in violation of this chapter, the Borough Council, Zoning Officer, or any interested party, in addition to other remedies may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land, and to prevent any illegal act, conduct, business or use in or about such premises.

B. Except as otherwise provided in Subsection C herein, any person who shall violate any provision of this chapter shall be liable for one or more of the following: a fine not exceeding $1,000, or imprisonment for a term not exceeding 90 days, or community service for a period not exceeding 90 days. In the case of a continuing violation, each day that such violation continues shall be deemed a separate offense. Any complaint to impose such penalty may be filed in municipal court on behalf of the state by the Borough Council, Zoning Officer, or any interested party.

(1) Any person who is convicted of violating this chapter within one year of the date of a previous violation of the same provision shall be sentenced by the court to an additional fine as a repeat offender. The additional fine imposed by the court upon a person for a repeated offense shall not be less than the minimum or more than the maximum fine fixed for a violation of the provision, but shall be calculated separately from the fine imposed by the violation of the provision.

(2) Any person convicted of violating this chapter and who is in default of the payment of any fine imposed for the violation may, at the court's discretion, be imprisoned for a term not exceeding 90 days or be required to perform community service for a period not exceeding 90 days.

C. Transfer or sale of land requiring municipal approval.

(1) If, before final subdivision approval has been granted, any person transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval, as owner or agent, any land which forms a part of a subdivision for which municipal approval is required by ordinance pursuant to this act, 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 to the foregoing, the municipality may institute and maintain a civil action:

(a) For injunctive relief; and

(b) 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, by 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.

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

D. See § 80-19, Zoning permits, building permits and certificates of occupancy, and § 80-12, Enforcing officers, in Article IV.

§ 80-32 Zoning districts and Zoning Map.

The zoning districts shall be as shown on the accompanying map and enumerated in the District Regulations.[1]

[1] Editor's Note: The Zoning Map is included as an attachment to this chapter.