A.
Public hearings by the Board shall be required for the following:
(1)
On each application for development, except when such application
is specifically exempted from public hearing by this chapter.
(2)
On any adoption, revision or amendment of the Master Plan.
(3)
On appeal from the action of the Zoning Officer or other administrative
appeal within its jurisdiction.
B.
The Mayor and Borough Council shall hold a hearing on any adoption,
revision, or amendment of this chapter or of any development regulation.
C.
The Board or Mayor and Borough Council, as applicable, shall hold
a hearing on any adoption, revision or amendment of a capital improvement
program.
Pursuant to N.J.S.A. 40:55D-10, the Board shall adopt rules governing its hearings. Upon the determination that an appeal or application is complete pursuant to Article 9, the Board shall schedule a hearing date in accordance with its rules.
Pursuant to N.J.S.A. 40:55D-12, public notice as specified herein
shall be given for all hearings involving the following:
A.
Any application for development which involves a request for a variance;
B.
An application for interpretation of the zoning regulations or decisions upon special questions; provided, however, that such notice shall be both published and served as set forth in Articles 4 and 5 if the application involves a specific property, and further provided that such notice shall be limited to publication as set forth in Article 5 if the application does not involve a specific property;
C.
An application for preliminary major site plan approval;
D.
An application for preliminary major subdivision approval;
E.
An application for certification of a nonconforming use or structure;
F.
An application for conditional use approval;
G.
The adoption, revision or amendment of the Master Plan;
H.
The adoption, revision or amendment of this chapter or any other
development regulation;
I.
The adoption, revision or amendment of a capital improvement program;
and
J.
Preliminary review of the Zoning Officer’s decision with regard
to a resident homeowner’s dwelling shall not require any additional
notice other than appearing on the Planning Board’s published
agenda no less than two business days prior to the scheduled meeting.
All other interpretations and appeals of any administrative officer
shall comply with N.J.S.A. 40:55D-70b.
[Amended 11-8-2017 by Ord. No. 2017-04]
The following provisions shall apply to public notice of hearings
for development applications, as mandated by N.J.S.A. 40:55D-12, including
but not limited to:
A.
Content. Public notice of hearings for development applications,
including variance applications, shall state the following:
(1)
The date, time and place of the hearing;
(2)
The nature of the matters to be considered, provided that when
conditional use approval, variance relief or direction for the issuance
of a permit pursuant to this chapter is requested, the notice shall
include reference to the request for conditional use approval, variance
or direction for issuance of a permit, as the case may be;
(3)
An identification of the property proposed for development by
street address, if any, or by reference to lot and block numbers as
shown on the current tax duplicate in the Tax Assessor's office; and
(4)
The location and times at which any maps and documents for which
approval is sought are available for inspection in the office of the
Board Secretary.
B.
Service of notice; parties entitled to notice. Public notice shall
be given by the applicant. Notice shall be given at least 10 days
prior to the date of the hearing. The date of the hearing shall not
count as one of the 10 days. Public notice shall be given by publication
in the official newspaper of the Borough, if there is one, or in a
newspaper of general circulation in the Borough.
(1)
Notice shall also be given to members of the public as follows:
(a)
Notice of hearing shall be given to the owners, including owners
of condominium units as shown on the current tax duplicates, of all
real property within 200 feet in all directions of the property which
is the subject of such hearing. Notice shall be given as follows:
[1]
Notice shall be given by serving a copy thereof on the property
owner as shown on the current tax duplicate, or his/her agent in charge
of the property, or mailing a copy thereof by certified mail to the
property owner at his/her address as shown on the current tax duplicate.
[2]
Notice to a partnership owner or limited liability company owner
may be made upon any partner or as otherwise permitted by law.
[3]
Notice to a corporate owner or professional corporation owner
may be made by service upon its president, a vice president, secretary
or other person authorized by appointment or by law to accept service
on behalf of the corporation.
(2)
Notice of hearings on applications for development involving
property located within 200 feet of an adjoining municipality shall
be given by personal service or certified mail to the clerk of such
municipality.
(3)
Notice shall be given by personal service or certified mail
to the Union County Planning Board ("County Planning Board") of hearings
on applications for development involving property adjacent to an
existing county road or proposed road shown on the Official County
Map or on the Union County Master Plan, adjoining other county land
or situated within 200 feet of a municipal boundary. Notice shall
not be given for applications on a single-family house.
(4)
Notice shall be given by personal service or certified mail
to the Commissioner of Transportation of a hearing on an application
for development involving property adjacent to a state highway.
(5)
Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. The notice shall include a copy of any maps or documents required to be on file with the Board Secretary pursuant to Article 4.
(6)
Notice of hearings on an application for development involving
a major subdivision or preliminary site plan, excluding minor site
plans, shall be given to a public utility, cable television company
or local utility which possesses a right-of-way or easement within
the Borough and which has registered with the Borough in accordance
with the Municipal Land Use Law[1] by serving a copy of the notice on the person whose name
appears on the registration form on behalf of the public utility,
cable television company or local utility, or mailing a copy thereof
by certified mail to the person whose name appears on the registration
form at the address shown on that form.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
C.
Request for certified list of property owners within 200 feet. Upon
written request of an applicant, the administrative officer shall,
within seven days of the date the application is deemed complete,
make and certify a list from the current tax duplicates of the names
and addresses of owners to whom the applicant is required to give
notice. In addition, the administrative officer shall include on the
list the names, addresses and positions of those persons who, not
less than seven days prior to the date on which the applicant requested
the list, have registered to receive notice as a public utility, cable
television company or local utility. The applicant shall be entitled
to rely upon the information contained in such list, and failure to
give notice to any owner or to any public utility, cable television
company or local utility not on the list shall not invalidate any
hearing or proceeding.
D.
Effect of mailing notice. Any notice made by certified mail as stipulated
above shall be deemed complete upon mailing.
E.
Proof of service of notice. The applicant for development shall file
an affidavit of proof of service with the Board.
The following provisions shall apply to public notice of hearings
for adoption, revision or amendment of the Master Plan:
B.
Notice of hearings for the Master Plan. Notice shall be given by
the Board at least 10 days prior to the date of the hearing. The date
of the hearing shall not count as one of the 10 days. Public notice
shall be given by publication in the official newspaper of the Borough,
if there is one, or in a newspaper of general circulation in the Borough.
Notice shall also be given to the following parties as specified below:
(1)
Notice shall be given by personal service or certified mail
to the clerk of an adjoining municipality of all hearings on adoption,
revision or amendment of the Borough Master Plan involving property
situated within 200 feet of such adjoining municipality.
(2)
Notice shall be given by personal service or certified mail
to the County Planning Board of all hearings on the adoption, revision
or amendment of the Borough Master Plan. Such notice shall include
a copy of any such proposed Master Plan, or any revision or amendment
thereto.
(3)
Notice shall be given by personal service or certified mail
to the County Planning Board of the adoption, revision or amendment
of the Borough Master Plan. Such notice shall be given not more than
30 days after the date of such adoption, revision or amendment and
shall include a copy of the Master Plan, or revision or amendment
thereto.
C.
Effect of mailing notice. Any notice made by certified mail as stipulated
above shall be deemed complete upon mailing.
The following provisions shall apply to public notice of hearings
for adoption, revision or amendment of this chapter, other development
regulations or the Capital Improvement Program:
A.
Content. Public notice of hearings for adoption, revision or amendment
of this chapter, other development regulations, or the Capital Improvement
Program shall provide the following:
(1)
A statement of the date, time and place of the hearing;
(2)
A statement of the nature of the matters to be considered;
(3)
The location and times at which any maps and documents which
are the subject of said adoption, revision or amendment are available
for inspection in the office of the Borough Clerk;
(4)
In the case of zone district classification or boundary changes with enhanced notice requirements pursuant to Subsection B(3), the notice shall also provide an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicates in the Tax Assessor's office; and
(5)
In the case of notice to the County Planning Board, a copy of
the proposed or adopted development regulation, Official Map, Capital
Improvement Program, or any proposed or adopted revision or amendment
thereto, as the case may be, shall be included with the notice.
B.
Service of notice; parties entitled to notice. Notice shall be given
by the governing body at least 10 days prior to the date of the hearing.
The date of the hearing shall not count as one of the 10 days. Notice
shall be given to the following parties as specified below:
(1)
Notice shall be given by personal service or certified mail
to the clerk of an adjoining municipality of all hearings on adoption,
revision or amendment of any development regulation involving property
situated within 200 feet of such adjoining municipality.
(2)
Notice shall be given by personal service or certified mail
to the County Planning Board of all hearings on the adoption, revision
or amendment of any development regulation.
(3)
Notice of a hearing on an amendment to the zoning regulations,
which amendment proposes a change to the classification or boundaries
of a zoning district, exclusive of classification or boundary changes
recommended in a periodic general reexamination of the Master Plan
by the Board pursuant to N.J.S.A. 40:55D-89, shall be given in the
following manner:
(a)
Notice shall be given by serving a copy thereof on the property
owner as shown on the current tax duplicate, or his or her agent in
charge of the property, or mailing a copy thereof by certified mail
and regular mail to the property owner at his address as shown on
the said current tax duplicate.
(b)
Notice to a partnership owner may be made by service upon any
partner.
(c)
Notice to a corporate owner, including cooperatives, may be
made by service upon its president, a vice president, secretary or
other person authorized by appointment or by law to accept service
on behalf of the corporation.
(d)
Notice to a condominium association, horizontal property regime,
community trust or homeowners' association, because of its ownership
of common elements or areas located within 200 feet of the boundaries
of the district which is the subject of the hearing, may be made in
the same manner as to a corporation in addition to notice to unit
owners, co-owners or homeowners on account of such common elements
or areas.
(e)
The Borough Clerk shall execute affidavits of proof of service
of the notices required for the hearings on zoning district classification
or boundary changes and shall keep the affidavits on file along with
the proof of publication of the notice of the required public hearing
on the proposed zoning regulation change. Costs of the notice provision
shall be the responsibility of the proponent of the amendment.
(4)
Notice shall be given by personal service or certified mail
to the County Planning Board of the adoption, revision or amendment
of the Borough Capital Improvement Program or Official Map. Such notice
shall be given not more than 30 days after the date of such adoption,
revision or amendment.
C.
Effect of mailing notice. Any notice made by certified mail as stipulated
above shall be deemed complete upon mailing.
A.
Any maps and documents for which approval is sought at a hearing
shall be on file and available for public inspection at least 10 days
before the date of the hearing, during normal business hours in the
office of the Board Secretary. The applicant may produce other documents,
records, or testimony at the hearing to substantiate or clarify or
supplement the previously filed maps and documents.
B.
Applicants are encouraged to file electronic copies of completed
applications to facilitate public review.
The following provisions shall govern the testimony of witnesses
and production of evidence at hearings conducted pursuant to this
chapter:
A.
The officer presiding at the hearing or such person as he/she may
designate shall have power to administer oaths and issue subpoenas
to compel the attendance of witnesses and the production of relevant
evidence, including witnesses and documents presented by the parties.
The provisions of the County and Municipal Investigations Law shall
apply.[1]
[1]
Editor's Note: See N.J.S.A. 2A:67A-1 et seq.
B.
The testimony of all witnesses relating to an application for development
shall be taken under oath or affirmation by the presiding officer.
The right of cross-examination shall be permitted to all interested
parties through their attorneys, or themselves.
C.
Technical rules of evidence shall not be applicable to the hearing,
but the Board may exclude irrelevant, immaterial or unduly repetitious
evidence.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
In addition to receiving testimony, the Board shall afford members
of the public the right to comment upon any application for development
pending before the Board. Such comments may be presented in written
form, as well as orally. The Chairperson of the Board or a majority
of the Board may vote to limit the time allowed for oral public comment,
to be reasonably determined under the circumstances.
The following voting procedures shall apply for public hearings
held pursuant to this chapter. Nothing herein shall be construed to
contravene any act providing for procedures for governing bodies.
A.
All actions shall be taken by a majority vote of the members present
at the hearing. In the case of a use variance pursuant to N.J.S.A.
40:55-70d, affirmative votes are required by at least five members.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
B.
A member of the Board who was absent for one or more of the meetings
at which a hearing was held or was not a member of the Board at that
time shall be eligible to vote on the matter upon which the hearing
was conducted if such member has available to him/her the transcript
or recording of all of the hearings from which he/she was absent or
was not a member, and certified in writing to the Board that he/she
has read such transcript or listened to such recording.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
C.
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. A tie vote shall be deemed a failure to receive the number
of votes required.
A.
Findings of fact and conclusions. The 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. Failure of a motion to receive the number of votes required to approve an application for development pursuant to the exceptional vote requirements of N.J.S.A. 40:55D-34 or § 120-4.10A shall be deemed an action denying the application. The Board shall provide the findings and conclusions through:
(1)
A resolution adopted at a meeting held within the time period
provided in N.J.S.A. 40:55D 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 a majority of such members present at the meeting at which
the resolution is presented for adoption shall be sufficient to adopt
the resolution. An action pursuant to N.J.S.A. 40:55D-9, resulting
from the failure of a motion to approve an application, shall be memorialized
by resolution as provided above, with those members voting against
the motion for approval being the members eligible to vote on the
memorializing resolution. The vote on any such resolution shall be
deemed to be a memorialization of the action of the 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 publication required by N.J.S.A. 40:55D-10h
and i.
B.
Conditional decisions; County Planning Board approval. Where required
by law, N.J.S.A. 40:27-6.6, the application shall be submitted to
the County Planning Board for review or approval, and in such cases,
the Borough Planning Board shall condition any approval that it grants
upon timely receipt of a favorable report from the County Planning
Board or upon the County Planning Board's failure to report within
the required time period. Decisions may also be conditioned on approval
by other governmental agencies.
C.
Mailing. 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/her attorney, without separate charge. A copy of the decision
shall also be mailed to all persons who request it and who have paid
the prescribed fee. A copy of the decision shall also be filed in
the office of the administrative officer, who shall make a copy of
such filed decision available for public inspection during his/her
office hours and a copy available to any interested party upon payment
of a fee, calculated in the same manner as those established for copies
of the other public documents in the Borough.
D.
Publication. A brief notice of every final decision on an application
for a variance or development shall be published in the official newspaper
of the Borough. Such publication shall be arranged by and be the responsibility
of the applicant. Notice shall be sent to the official newspaper for
publication within 10 days of the date of any such decision. The applicant
shall file an affidavit of publication with the Planning Board on
the application for development.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
E.
Time for appeal. The period of time in which an appeal of the decision
may be made shall run from the date of publication of the decision.
The 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. The Board shall provide the findings
and conclusions through either resolution adopted at a meeting held
within the time period provided in the Act[1] for action by the Board on the application for development
or a memorializing resolution adopted at a meeting held not later
than 45 days after the date of the meeting at which the Board voted
to grant or deny approval. The following provisions shall apply to
memorializing resolutions:
A.
Only the members of the Board who voted for the action taken may
vote on the memorializing resolution, and the vote of a majority of
such members present at the meeting at which the resolution is presented
for adoption shall be sufficient to adopt the resolution. If only
one member who voted for the action attends the meeting at which the
resolution is presented for adoption, the resolution may be adopted
upon the vote of that member.
B.
An action to deny, 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.
C.
The vote of any memorializing resolution shall be deemed to be a memorialization of the 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 this Part 1.
D.
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 attorney's fees, shall be assessed
against the Borough.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 e seq.
Following adoption of a resolution on a development application
by the Board, the resolution shall be mailed, filed and published
as follows:
A.
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 to his
attorney, without separate charge. A copy of the decision shall also
be mailed to all persons who have requested it and who paid the fee
prescribed by the Board for such service.
B.
A copy of the decision shall also be filed in the office of the Borough
Clerk, who shall make a copy of such filed decision available to any
interested party upon payment of a fee calculated in the same manner
as those established for copies of other public documents in the municipality.
C.
A brief notice of every final decision shall be published in the
official newspaper of the Borough. Such publication shall be arranged
by the Secretary of the Board and the applicant shall be obligated
to pay for the cost of such publication. Said notice shall be sent
to the official newspaper for publication within 10 days of the date
of any such decision.
The 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/her expense at the actual
cost of preparing the transcript or duplicate recording. Transcript
shall be certified in writing by the transcriber to be accurate.[1]
