Borough of Kenilworth, NJ Fees, Deposits, Guarantees and Other Payments

Permit for a clothing donation bin: $150.

Renewal of a clothing donation bin permit: $100.

AA.

Change to Tax Map: $150.

[Added 8-14-2019 by Ord. No. 2019-09]

§ 120-6.3 Payment for professional and other expert services.

At the time of filing of an application for development, appeal, or other matters pursuant to this chapter, the applicant shall pay to the Board Secretary a deposit, in accordance with the schedule below, to be used to reimburse the Borough for said professional services. Deposits shall be placed in the Borough escrow account if required pursuant to this chapter or the Municipal Land Use Law.[1] In the case of proposals requiring a combination of approvals, such as a subdivision, site plan and/or variance(s), the applicant shall deposit an amount equal to the sum of the deposits required for each application.

The Chief Financial Officer of the Borough shall make all payments to professionals for services rendered to the Borough or the Board for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of the Municipal Land Use Law or this chapter. Such payments shall be made pursuant to vouchers for charges, described below.

Notwithstanding the above, if the Board determines that professional services are not required in order to process and review the application, no deposit shall be required. Notwithstanding such determination, the Board may, at any time thereafter, determine that professional services are required and require that the applicant provide a deposit to the Board within 10 days of the date thereof.

[1]

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

Schedule of escrow deposits. The initial deposit for payment of professional services shall be as set forth on the following schedule, provided that if the Board Secretary determines that a greater initial deposit than indicated on the following schedule is necessary to reimburse the anticipated cost of professional services on a particular application, such as, but not limited to, circulation-intensive sites requiring the services of a traffic engineering consultant, the applicant shall be required to deposit said greater amount. All payments from such deposits shall be made in accordance with N.J.S.A. 40:55D-53.2.

Appeal for "C" variance:

If part of site plan or subdivision: none.

If not part of site plan or subdivision, or if bifurcated: $600 for the first variance, $100 for each additional variance.

Appeal for "D" variance: one- or two-family residential use: $600; other residential use: $1,000; commercial/industrial use: $4,000 for each variance.

Request for the issuance of permits for structures in areas reserved on the Official Map or for lots not fronting upon a street:

If part of site plan or subdivision: none.

If not part of site plan or subdivision, or if bifurcated: $2,000.

Appeals of the decision of the Zoning Officer shall be $1,000 and the Board shall not require an escrow deposit, nor shall the Board professional be permitted to charge for any service for a review of the Zoning Officer’s decisions with regard to resident homeowner’s dwellings.

[Amended 11-8-2017 by Ord. No. 2017-04]

Interpretation of the zoning regulations, Zoning Map or Official Map: $1,000.

(6)

Conditional use review: $600.

(7)

Informal review of concept plan: $1,000.

(8)

Minor site plan: $500.

(9)

Minor subdivision: $1,000 plus $250 per each lot.

(10)

Preliminary major site plans: $1,000.

(11)

Preliminary major subdivisions: $2,000 plus $150 per each lot.

(12)

Final major site plans:

If reviewed at same time as preliminary major site plan: none.

If reviewed subsequent to preliminary major site plan: $1,000.

(13)

Final major subdivisions: $1,000 per lot.

Depletion of deposits. If an escrow account or deposit contains insufficient funds, pursuant to N.J.S.A. 4055D-53.1 et seq., to enable the Borough or the Board to perform required application reviews or inspections of improvements, the Chief Financial Officer shall provide the applicant with a notice of the insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall within a reasonable time period, not to exceed 10 days, post a deposit to the account in an amount to be determined by the Board. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

Failure to provide or maintain adequate deposit. No application shall be deemed complete and no action shall be taken by the Board until the initial deposit required by Subsection B above has been submitted. If the funds required by Subsection B above for professional services are not deposited in a timely manner, the Board Secretary shall notify the Board. No further action shall be taken on the application unless the deposits have been made by the applicant as required above. In the event that a delay in the payment or maintenance of the required deposits results in a substantial reduction in the available time for action by the Board, or any extension thereof as provided by this chapter, the Board may, at its discretion, dismiss the application.

Eligible charges against deposit. All professional charges for review of an application for development, review and preparation of documents, or inspection of improvements shall be reasonable and necessary, given the status and progress of the application or construction. The following provisions shall apply:

Professional charges may include the services of a duly licensed engineer, surveyor, planner, architect, landscape architect, court reporter, traffic expert (can be unlicensed), attorney, realtor, appraiser or other expert providing professional services and their staff to ensure that an application complies with the standards set forth in this chapter, and other experts whose testimony is in an area of expertise introduced by any of the applicant's experts or in areas where the Board requires further information, provided that such charges shall not include time expended by the Zoning Officer.

Application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the Borough. The charges shall be for the following services:

Reviews by professional personnel of applications and accompanying documents;

Issuance of reports by professional personnel to the Board setting forth recommendations;

Charges for any telephone conferences or meetings requested or initiated by the applicant, his or her attorney or any of his or her experts or by the Board or any of its professionals;

(d)

Review of documents submitted by the applicant not required by this chapter and issuance of reports relating thereto;

(e)

Review or preparation of easement documents, developer's agreements, deeds or the like;

(f)

Preparation for attendance at special meetings; and

(g)

The preparation of resolutions, including without limitation resolutions pertaining to an application concerning which the resolution must contain a summary of two or more witnesses, including experts, testifying on behalf of the applicant in order for the resolution to contain adequate findings of fact and conclusions based thereon pursuant to this chapter or the Municipal Land Use Law.[2]

[2]

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

Professional charges may also include the costs of expert advice and/or testimony obtained by the Board for the purpose of corroborating testimony of the applicant's experts, or providing a separate review which the Board deems necessary to make an informed decision, provided that:

This provision shall not entitle the Borough to reimbursement for the cost of expert advice and/or testimony at a regularly scheduled meeting of the Board, when such advice and/or testimony is provided in the expert's capacity as a full-time or part-time Borough employee; and

The Board shall give prior notice to the applicant of its intention to obtain such additional expert advice or testimony and afford the applicant an opportunity to be heard as to the necessity for such additional advice or testimony and as to the definition of the limitations on the nature and extent thereof.

Exceptions and limitations. The following limitations shall apply to the charges for professional services:

Review fees shall be charged only in connection with an application for development presently pending before the Board, or review of compliance with conditions of approval, or review of requests for modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any state governmental agency and not under Borough jurisdiction, except to the extent consultation with a state agency is necessary due to the effect of state approvals upon the subdivision or site plan.

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

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements.

The Borough or Board shall not bill the applicant or charge any escrow account or deposit authorized herein for any Borough clerical or administrative functions, overhead expenses, meeting room charges, or any other Borough costs and expenses except as provided for in this section, nor shall a Borough professional add any such charges to his or her bill.

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

Rates of payment for professional services. If the salary, staff support and overhead for a professional are provided by the Borough, the hourly rate charged to the deposit from said professional shall be at 200% of the sum of the products resulting from multiplying the hourly base salary, which shall be established annually by ordinance, of each of the professionals by the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the Borough when fees are not reimbursed or otherwise imposed on applicants or developers. Rates for professional services shall be in accordance with a schedule of professional fees filed annually with the Board Secretary and maintained in the office of the Borough Clerk for public inspection.

Vouchers for payment of professional services. Each payment charged to a deposit for the review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional. The processing of vouchers shall be in accordance with the following:

The voucher shall describe the services provided, identify the personnel performing the service, and for each date the services are performed, the hours spent to one-quarter-hour increments, the hourly rate and the expenses incurred.

All professionals shall submit vouchers to the Chief Financial Officer of the Borough on a monthly basis in accordance with the schedules and procedures established by the Chief Financial Officer of the Borough.

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

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

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

Appeals of charges. An applicant shall notify in writing the governing body, with copies to the Chief Financial Officer, the Board and the professional, whenever the applicant disputes the charges made by a professional for services rendered to the Borough in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the Municipal Land Use Law.[3] The following shall apply:

An applicant shall file an appeal within 45 days from receipt of the information copy of the professional's voucher required by Subsection H, except that if the professional has not supplied the applicant with an informational copy of the voucher, then the applicant shall file his or her appeal within 60 days from receipt of the Borough statement of activity against the deposit or escrow account required by this Part 1.

The governing body or its designee(s) shall within a reasonable time period attempt to mediate any disputed charges.

If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the Union County Construction Board of Appeals established under N.J.S.A. 52:27D-127. An applicant or his or her authorized agent shall submit the appeal in writing to the County Construction Board of Appeals. The applicant or his or her authorized agent shall simultaneously send a copy of the appeal to the Borough, the Board, and any professional whose charge is the subject of the appeal. The procedures followed by the County Construction Board of Appeals shall be as set forth in N.J.S.A. 40:55D-53.2b and c.

An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An applicant making use of this provision need not appeal each charge individually.

During the pendency of any appeal, the Borough or approving authority shall continue to process, hear, and decide the application for development and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance and maintenance guarantees, the issuance of building permits or certificates of occupancy, or any other approval or permit because an appeal has been filed or is pending under this subsection. The Chief Financial Officer may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

(6)

If a charge is disallowed after payment, the Chief Financial Officer shall reimburse the deposit or escrow account in the amount of any such disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment to a professional or consultant who is not an employee of the Borough, the professional or consultant shall reimburse the Borough in the amount of any such disallowed charge.

[3]

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

§ 120-6.4 Inspection fees; deposit required.

The developer shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the inspection of improvements required pursuant to this chapter. Prior to the initiation of any construction approved pursuant to this chapter, the developer shall deposit with the Board Secretary sufficient funds to reimburse the Borough for inspection fees paid to the Borough Engineer. The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit. Deposits shall be as follows:

The developer shall deposit for the inspection fees an amount with the Borough not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined pursuant to this chapter.

For those developments for which the reasonably anticipated inspection fees are less than $10,000, inspection fee deposits may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated inspection fees. When the balance on deposit drops to 10% of the reasonable anticipated inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees.

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

Appeals of the amount required to be deposited for the payment of inspection fees or the amount charged for the inspection of improvements shall follow the procedures in § 120-6.3I.

§ 120-6.5 Performance and maintenance guarantees.

Before recording of final subdivision plats or as a condition of final site plan approval or as a condition to the issuance of a zoning approval pursuant to this chapter, the Board may require and shall accept performance and maintenance guarantees for the purpose of assuring the installation and maintenance of on tract improvements. Such performance and maintenance guarantees shall be in accordance with the following standards:

Performance guarantees. The following standards shall apply to the administration of performance guarantees:

Amount of performance guarantee. The performance guarantee for the installation of those improvements required shall be in favor of the Borough in an amount equal to 120% of the cost of such improvements. The cost of said improvements shall be determined by the Borough Engineer based on documented construction costs for improvements prevailing in the general area of the Borough. The Borough Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which estimate shall be appended to each performance guarantee posted by the obligor.

Appeal of disputed performance guarantee amounts. The developer may appeal the Borough Engineer's estimate of the cost of improvements for purposes of furnishing a performance guarantee. Such appeal shall be made in accordance with the procedures set forth in Part 3.

Form of guarantee. At least 10% of the performance guarantee shall be in the form of cash or a certified check made payable to the Borough. The balance of the performance guarantee shall be in the form of any security issued by an institution authorized to issue such securities in the State of New Jersey and which may be accepted by the Borough and approved by the Borough Attorney, including but not limited to surety bonds, cash and letters of credit, provided that the Borough shall only accept an irrevocable letter of credit if it:

Constitutes an unconditional payment obligation of the issuer running solely to the Borough for an express initial period of time of at least one year but not more than two years from the date of final approval;

Is in the amount determined by the Borough Engineer or the governing body, as applicable, as provided herein, less the amount of any other forms of guarantee furnished;

Is issued by a banking or savings institution authorized to do and doing business in the State of New Jersey; and

(d)

Permits the Borough to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of this section 30 days or more in advance of the expiration date of the letter of credit or such longer period in advance thereof as is stated in the letter of credit.

Time allowed for completion of improvements. The performance guarantee shall state the time period within which all improvements are to be installed by the developer. No performance guarantee shall run for a term longer than two years, except as provided otherwise by this chapter.

Extension of time allowed for completion of improvements. The time allowed for installation of the 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 at the time of the resolution. The cost of the installation shall be determined by the Borough Engineer as provided herein for the initial cost determination.

Failure to complete improvements within time specified. If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable cost of the improvement not completed or corrected. The Borough may, either prior to or after receipt of the proceeds thereof, complete such improvements or use said funds to restore the property to a safe condition so that the subject property in its unfinished development state does not adversely affect the public safety or adversely impact the environment. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law.[1]

[1]

Editor's Note: See N.J.S.A. 40A:11-1 et seq.

(6)

Release of performance guarantee. Release of performance guarantees shall be in accordance with the following procedure:

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 that the Borough Engineer prepare a list of all uncompleted or unsatisfactorily completed improvements. The request to the Mayor and Council shall be made in writing by certified mail addressed to the Borough Clerk, with a copy of the request to be sent to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor.

Upon receiving the obligor's request, the Borough Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, to 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.

The detailed list prepared by the Borough Engineer shall be in accordance with the itemized cost estimate prepared by the Borough Engineer, which estimate shall have been appended to the performance guarantee as required herein. The list prepared by the Borough Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory.

(d)

The report prepared by the Borough Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement. The recommended reduction shall be in accordance with the itemized cost estimate prepared by the Borough Engineer, which cost estimate shall have been appended to the performance guarantee as required herein.

(e)

The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough Engineer or reject any or all of these improvements. The cause for any rejection shall be stated in the resolution. If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification as required herein shall be followed.

(f)

For accepted improvements, the governing body shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted. Any authorized reduction shall be in accordance with itemized cost estimate prepared by the Borough Engineer, which cost estimate shall have been appended to the performance guarantee as required herein. The resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer.

(g)

Any partial reduction granted in the performance guarantee as provided 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.

(7)

Failure of the Borough Engineer or the governing body to act.

If the Borough Engineer or the governing body fails to act on the request for release of a performance guarantee within the time required, the obligor may apply to the court in the manner provided below, provided that nothing herein shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the Borough Engineer.

If the Borough Engineer fails to send or provide the list and report as requested by the obligor as required herein within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough Engineer to provide the list and report within a stated time. 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 improvements determined by the Borough 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 Borough Engineer's 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 approvals complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Borough Engineer, which cost estimate shall have been appended to the performance guarantee as required herein. The cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

Maintenance guarantee. After final acceptance of required improvements, a maintenance guarantee shall be required to be posted with the Borough. Except as specifically provided otherwise below, maintenance guarantees shall be administered in the same manner as performance guarantees, as provided by this chapter.

Amount of maintenance guarantee. The maintenance guarantee shall be in favor of the Borough in an amount equal to 10% of the cost of such improvements. The cost of said improvements shall be determined by the Borough Engineer in the same manner as provided herein for performance guarantees.

Form of guarantee. The maintenance guarantee shall be in the form accepted by the Borough and approved by the Borough Attorney, including but not limited to surety bonds, cash and/or letter of credit; provided that acceptance of irrevocable letters of credit shall be subject to the same conditions as provided herein for performance guarantees.

Time required for maintenance guarantee. The maintenance guarantee shall be required to run for a period of two years after final acceptance, which shall be stated in the guarantee.

Exception for improvements related to other jurisdictions. 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.

Final approval by stages or sections of development. In the event that final approval is by stages or sections of development as provided by this article, the provisions of this section shall be applied by stage or section of development.

§ 120-6.6 Administration of deposits and escrows.

Deposits received for professional services employed by the Borough to review applications for development, for Borough inspections fees in accordance with this article, or to satisfy the guarantee requirements of this article shall be administered in accordance with the following procedures:

Collection, processing and maintenance of deposits. All funds shall be collected by the Board Secretary. The Secretary of the Board shall maintain account records, process invoices, etc. for the Board. The actual escrow deposit shall be maintained by the Borough Chief Financial Officer (CFO).

Deposits to be held in escrow. Whenever an amount of money shall be deposited by an applicant with the Borough, the money, until repaid or applied to the purposes for which it is deposited, including the applicant's portion of the interest earned thereon, except as otherwise provided in this article, shall continue to be the property of the applicant and shall be held in trust by the Borough. Deposits received pursuant to this article shall be held in escrow and deposited in a banking institution or savings and loan association in New Jersey insured by an agency of the federal government, or any other fund or depository approved for such deposits by the State of New Jersey. Such deposits shall be placed in an account bearing interest at the maximum rate currently paid by the institution or depository on time or savings deposits. The Borough shall notify the applicant in writing of the name and address of the institution or depository in which the deposit is made and the amount of deposit.

Refund of deposits; interest. Any of the funds remaining in the deposit, excluding interest, upon completion of the purpose for which the deposit was made shall be returned to the applicant and the account shall be terminated. For deposits over $5,000 placed in an interest bearing account pursuant to this article, refunds of interest shall be made as follows:

The Borough shall not be required to refund an amount of interest paid on a deposit which does not exceed $100 for the year.