Except as otherwise provided in this chapter, the approval provisions
of this article shall be administered by the Planning Board in accordance
with Section 28 of Chapter 291, Laws of N.J. 1975. Whenever the Board of Adjustment has jurisdiction over
an application it shall act in the same manner and in the same capacity
as the Planning Board as hereinafter provided.
In accordance with the provisions of N.J.S.A. 40:55D-56, the
prospective purchaser, prospective mortgagee or any other person interested
in any land which forms part of a subdivision or which formed part
of such a subdivision three years preceding the effective date of
the Municipal Land Use Law, Chapter 291 of the Laws of New Jersey
1975, may apply in writing to the Borough Clerk for the issuance of
a certificate certifying whether or not such subdivision has been
approved by the Planning Board.
[Added 7-18-2019 by Ord.
No. 7-2019]
A. Installation of improvements or provision of guarantees required
before final approval; scope of performance guarantees.
(1)
Before recording of final subdivision plats or recording of minor subdivision deeds or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65, the applicant shall have installed all required improvements; provided, however, that the Borough may require and shall accept performance and maintenance guarantees for the purpose of assuring the installation and maintenance of certain on-tract improvements. Such performance and maintenance guarantees shall be in accordance with the provisions of this Section
13-4.9.
(2)
If an applicant elects to post a performance guarantee pursuant
to this section, the final plat, minor subdivision deed, or final
site plan shall contain the following statement in boldface letters:
NOTICE
|
CONSTRUCTION OF ALL REQUIRED IMPROVEMENTS IS TO BE COMPLETED
WITHIN THE TIME FRAME PROVIDED FOR IN THE DEVELOPER'S AGREEMENT UNLESS
AN EXTENSION OF TIME HAS BEEN OBTAINED FROM THE APPROPRIATE MUNICIPAL
AGENCY. THE MUNICIPALITY HAS NO OBLIGATION TO CONSTRUCT ANY IMPROVEMENTS
NOT COMMENCED, NOR TO COMPLETE ANY IMPROVEMENTS COMMENCED BY DEVELOPER
EXCEPT TO THE EXTENT OF FUNDS RECEIVED FROM THE PERFORMANCE GUARANTEES
POSTED BY DEVELOPER WITH THE MUNICIPALITY.
|
(2.1)
Public improvements. Performance guarantees shall be provided
for those improvements required to be dedicated to a public entity
by an approval, developer's agreement, ordinance or regulation, and
that have not yet been installed for the following improvements as
shown on the approved plans or plat: streets, pavement, gutters, curbs,
sidewalks, streetlighting, street trees, surveyor's monuments, water
mains, sanitary sewers, drainage structures, public improvements of
open space and any grading necessitated by the preceding enumerated
improvements.
(2.2)
Perimeter buffer landscaping. Performance guarantees shall be
provided, within an approved phase or section of a development, for
privately owned perimeter buffer landscaping as required by this chapter
or imposed as a condition of approval.
(2.3)
Safety and stabilization. A "safety and stabilization guarantee"
in favor of the Borough shall be provided 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.
(2.4)
Temporary Certificates of Occupancy. 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."
Such guarantee shall cover 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. The scope and amount of the
temporary certificate of occupancy guarantee shall be determined by
the Borough Engineer. The temporary certificate of occupancy guarantee
shall only be released upon the issuance of a permanent certificate
of occupancy with regard to the development, unit, lot, building or
phase of development to which the temporary certificate of occupancy
guarantee relates.
(2.5)
Successor developer. In the event that a successor developer to the original developer becomes responsible for completion of the required improvements, the successor developer shall furnish a replacement performance guarantee prior to release of the performance guarantee posted by the original developer in accordance with the provisions of this Section
13-4.9.
B. Phasing and/or sectioning.
(1)
In conjunction with the granting of final approval where the
developer is electing to post performance guarantees for any improvements,
the Board shall establish a time schedule or phasing/sectioning plan
for the installation of improvements and a level of monetary guarantees
coordinated with that schedule or plan in order to protect the Borough.
Timing or phasing/sectioning of improvements shall be established
with consideration of the following factors:
(1.1)
The estimated amount of time needed to install all improvements;
(1.2)
Physical characteristics of the site;
(1.3)
Current market and economic conditions;
(1.4)
The estimated cost of improvements and the nature of the performance guarantees in accordance with this Section
13-4.9; and
(1.5)
Representations of the developer relative to his ability to
meet the deadlines to be established.
(2)
All time schedules and phasing/sectioning plans shall be incorporated into the developer's agreement referred to in Section
13-4.10 of this chapter. It shall be the responsibility of the Borough Engineer to monitor progress of installation of improvements and the sufficiency of the performance guarantee as development progresses. In the event the Borough Engineer determines, at any time, that guarantees are insufficient to cover the completion of improvements, he may, with the concurrence of the Borough Attorney, adjust the limits of the guarantees. Any determination by the Borough Engineer may be appealed to the Borough Council within 10 days of such determination. Failure of the developer to either comply with the decision of the Borough Engineer or to appeal said decision in a timely fashion shall require immediate cessation of construction by issuance of a stop-work order by the Borough Engineer.
C. Amount and form of performance guarantees.
(1)
The amount of any performance guarantees required by this chapter
shall be as follows:
(1.1)
Public improvements. The performance guarantees shall be in
an amount not to exceed 120% of the cost of installation of only those
improvements required by an approval, 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 Borough
Engineer, according to the method of calculation set forth in 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, streetlighting,
street trees, surveyor's monuments shown on the final map, water mains,
sanitary sewers, drainage structures, public improvements of open
space, and any grading necessitated by the preceding improvements.
The Borough Engineer's itemized cost estimate of the improvements
shall be appended to each performance guarantee posted by the obligor.
(1.2)
Perimeter buffer landscaping. The amount of a perimeter buffer
landscaping guarantee shall be calculated in the same manner as for
the performance guarantee in Paragraph (a) above. At the developer's
option, any required performance guarantee for privately owned perimeter
buffer landscaping may be posted either as a separate guarantee or
as a line item of the performance guarantee required by Paragraph
(a) above.
(1.3)
Safety and stabilization. At the developer's option, any required
safety and stabilization guarantee may be furnished either as a separate
guarantee or as a line item of the performance guarantee required
by Paragraph (a) above. The amount of such guarantee shall be as follows:
(a)
$5,000 for the first $100,000 of bonded improvement costs; plus
(b)
Two and one-half percent of bonded improvement costs in excess
of $100,000 up to $1,000,000; plus
(c)
One percent of bonded improvement costs in excess of $1,000,000.
(1.4)
Temporary certificates of occupancy. The amount of any temporary
certificate of occupancy guarantee shall be determined by the Borough
Engineer.
(2)
Appeal of disputed performance guarantee amounts. The developer
may appeal the Borough Engineer's estimate of the costs of improvements
for purposes of furnishing a performance guarantee. Such appeal shall
be made in accordance with the provisions of N.J.S.A. 40:55D-53.4.
(3)
Form of guarantee. At least 10% of the performance guarantee
shall be in the form of cash or certified check made payable to the
Borough of Morris Plains. 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,
however, that the Borough shall only accept a letter of credit if
it:
(3.1)
Constitutes an irrevocable letter of credit that imposes an
unconditional payment obligation of the issuer running solely to the
Borough for an express initial period of time in the amount determined
pursuant to this chapter;
(3.2)
Is issued by a banking or savings institution authorized to
do and doing business in the State of New Jersey;
(3.3)
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 at least thirty (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.
(4)
Guarantees from successor developer. The Borough Council may
accept a performance guarantee in favor of the Borough from a successor
developer as a replacement for a performance guarantee that was previously
furnished, pursuant to N.J.S.A. 40:55D-53, for the purpose of assuring
the installation of improvements. The Borough Council shall not accept
a replacement performance guarantee without securing:
(4.1)
Written confirmation from the new obligor that the intent of
the new obligor is to furnish a replacement performance guarantee,
relieving the predecessor obligor and surety, if any, of any obligation
to install improvements; and
(4.2)
Written verification from the Borough Engineer that the replacement
performance guarantee is of an amount sufficient to cover the cost
of the installation of improvements, but not to exceed 120% of the
cost of the installation, which verification shall be determined consistent
with N.J.S.A. 40:55D-53.
D. Duration of performance guarantee.
(1)
Term of guarantee. The performance guarantee shall state the
time period within which all improvements are to be installed by the
developer, which shall be as set forth in the developer's agreement
with the Borough.
(2)
Extension of time allowed for completion of improvements. The
time allowed for installation of improvements for which performance
guarantees have been provided may be extended by resolution of the
Borough Council. As a condition of, 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 the Borough Council considers adoption
of the resolution. The cost of installation shall be determined by
the Borough Engineer as provided herein for the initial cost determination.
E. Failure to complete improvements within time specified.
(1)
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 improvements 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. The following shall apply:
(1.1)
Any completion or correction of improvements by the Borough
shall be subject to the Local Public Contracts Law, N.J.S.A. 40A:11-1
et seq.
(1.2)
If a safety and stabilization guarantee was required pursuant
to Section 13-4.9A(2(c), the Borough may utilize such guarantee only
in the circumstances 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.
(1.3)
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.
F. Release of performance guarantee.
(1)
Release of performance guarantees shall be in accordance with
the following procedures:
(1.1)
Upon substantial completion of all required street improvements
(except for the top course) and appurtenant utility improvements and
the connection of the same to the public system, the obligor may request
of the Borough Council that the Borough Engineer prepare a list of
all incomplete or unsatisfactory completed improvements. The request
to the Borough 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 incomplete in the
judgment of the obligor.
(1.2)
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, with the Borough Council,
and shall simultaneously send a copy thereof to the obligor not later
than 45 days after receipt of the obligor's request.
(1.3)
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 and remedy
for the unsatisfactory state of each completed improvement determined
to be unsatisfactory.
(1.4)
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.
(1.5)
The Borough Council, 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 Borough Council's resolution.
If any portion of the required improvement is rejected, the Borough
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.
(1.6)
For accepted improvements, the Borough Council 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 the 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.
(1.7)
Any partial reduction granted in the performance guarantee as
provided herein 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.
(1.8)
Upon posting of a temporary certificate of occupancy guarantee,
all sums remaining under a performance guarantee required pursuant
to Section 13-4.9A(2)(a), which relate to the development, unit, lot,
building, or phase of development for which the temporary certificate
of occupancy is sought, shall be released.
(1.9)
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 Borough Engineer 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.
(1.10) 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 by this Section 13-4.9A(2)(c).
(1.11) The Borough shall release a safety and stabilization
guarantee upon the Borough 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. 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.
(1.12) Within 30 days after acceptance of a replacement
performance guarantee, the Borough Council, by resolution, shall release
the predecessor obligor from liability pursuant to its performance
guarantee.
(1.13) 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 Borough
Engineer and appended to the performance guarantee pursuant to Section
13-4.9A(2)(a), 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 releases would reduce the amount held by the Borough below
30%.
G. Release from liability upon acceptance of improvements; acceptance
of dedicated improvements.
(1)
Upon adoption of the resolution of the Borough Council approving
certain completed improvements, the obligor shall be released from
all liability pursuant to its performance guarantee, with respect
to those approved improvements. The following shall apply: To the
extent that any of the improvements have been dedicated to the Borough
on the subdivision plat or site plan, the Borough Council shall be
deemed, upon the release of any performance guarantee required pursuant
to Section 13-4.9A(2)(a), to accept dedication for public use of streets
or roads any other improvements made thereon, provided such improvements
have been inspected and have received final approval by the Borough
Engineer.
H. Failure to act.
(1)
If the Borough Engineer or Borough Council fails to act on the
request for release of a performance guarantee within the time required
herein, 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 Borough Council or Borough Engineer.
(1.1)
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 fashion 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.
(1.2)
If the Borough Council 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
list and report, the obligor may apply to the court in a summary manner
for an order compelling, within a stated time, Borough Council 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 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.
I. Maintenance guarantees.
(1)
Public improvements and perimeter landscaping buffers. If required
by an approval, or developer's agreement with the Borough, the developer
shall post with the Borough prior to release of a performance guarantee
required pursuant to Section 13-4.9A(2)(a) or (b), a maintenance guarantee
for such improvements.
(2)
Except as specifically provided otherwise below, maintenance
guarantees shall be administered in the same manner as performance
guarantees as provided by this chapter.
(2.1)
Amount of maintenance guarantee. The maintenance guarantee shall
be in favor of the Borough of Morris Plains in an amount equal to
15% of cost of such improvements. In the event of improvements for
which a performance guarantee was issued, the amount of the maintenance
guarantee shall equal 15% of the cost of those improvements for which
the performance guarantee(s) is (are) being released. The cost of
said improvements shall be determined by the Borough Engineer in the
same manner as provided herein for performance guarantees.
(2.2)
Appeal of disputed maintenance guarantee amounts. The developer
may appeal the Borough Engineer's estimate of the cost of improvements
for purposes of furnishing a maintenance guarantee. Such appeal shall
be made in accordance with N.J.S.A. 40:55D-53.4.
(2.3)
Form of guarantee. The maintenance 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,
however, that acceptance of letters of credit shall be subject to
the same conditions as provided herein for performance guarantees.
(2.4)
Term of maintenance guarantee. The maintenance guarantee shall
be required to run for a period of two years, which shall be stated
in the guarantee and shall automatically expire at the end of the
established term.
(3)
Private stormwater management improvements. If required by an
approval, or developer's agreement with the Borough, the developer
shall post, with the Borough, upon the inspection and issuance of
final approval of the following final site improvements by the Borough
Engineer, a maintenance guarantee for the following private site improvements:
stormwater management basins, in-flow and water quality structures
within the basins, and the out-flow pipes and structures of the stormwater
management system, which shall comply with the requirements set forth
above.
J. Inspection of improvements and construction.
(1)
All improvements required by a Board approval, except electric,
telephone, cable television, streetlighting, gas, water, and streets
under the jurisdiction of a governmental entity other than the Borough,
shall be installed under the supervision and inspection of the Borough
Engineer. Such other improvements shall be installed under the supervision
and inspection of the authority having jurisdiction over such improvements.
No construction work covering the required improvements shall be commenced
without the developer first notifying the Borough Engineer and/or
Construction Official, as applicable, that said construction work
is about to take place. Such notice shall be given, in writing, to
the Borough Engineer at least one week before the commencement of
such work. No required improvements shall be covered with soil or
other improvements until inspected and approved by the Borough Engineer.
K. Exception for improvements related to other jurisdictions.
(1)
In the event that other governmental agencies or public utilities
automatically will own the improvements or utilities to be installed,
or the improvements or utilities are covered by a performance or maintenance
guarantee issued to another governmental agency, no performance or
maintenance guarantee, as the case may be, shall be required by the
Borough for such improvements or utilities.
[Added 7-18-2019 by Ord.
No. 7-2019]
Prior to any construction and coincident with the furnishing
of the performance guarantee by the developer, the developer shall
enter into a developer's agreement with the Borough incorporating
all of the terms and conditions of approval as required by the Board.
In addition, the developer's agreement may impose and prescribe the
terms of other matters that may or may not be specified in the Board's
approval, including but not limited to the following:
A. Procurement of necessary drainage, utility, access, construction
and other easements.
B. Revisions to the drainage plan as may be reasonably required by the
Borough Engineer before or during construction. All drainage problems
shall be resolved to the satisfaction of the Borough Engineer prior
to the issuance of the final certificate of occupancy in the subdivision.
C. Construction-related provisions, such as permitted days and hours
of construction, traffic controls, staging and storage of equipment
and materials, site security, noise and dust controls, installation
and use of temporary structures, etc.
D. Tree preservation, removal and replacement requirements.
E. Condominium requirements and documentation.
F. Compliance with state, county and other jurisdictional requirements.
G. Submission of as-built drawings.
I. Insurance, liability and indemnification requirements shall be drafted
in an agreement between the developer and the Borough of Morris Plains
incorporating all of the terms and conditions of approval imposed
by the Planning Board.
Pursuant to N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-42, where
the need for off-tract improvements for water, sewer drainage, street
improvements and other improvements as provided by law is, in whole
or in part, made necessary or required as a result of the proposed
development application, the municipal agency may require the applicant,
as a condition of subdivision or site plan approval, to construct
or contribute its pro-rata share of the cost of such off-tract improvements
in accordance with the provisions of this section.
A. Determinations by municipal agency. The municipal agency shall review
all subdivision and site plan applications to determine their impact
on the Borough's infrastructure. In making such a determination, the
municipal agency shall be guided by the rules and regulations specified
in this chapter and the Master Plan. The municipal agency shall also
be guided by recommendations regarding the subject matter from the
agency's attorney, engineer, planning consultant, municipal officials
and other qualified experts. Thereafter, the municipal agency shall,
with the assistance of such professionals:
(1)
Determine the need for off-tract improvements.
(2)
Determine the total cost of the off-tract improvement.
(3)
Determine the amount, if any, by which all properties to be
serviced thereby, including the applicant's property, will be specially
benefited therefrom.
(4)
In cases where reasonable and necessary need for the off-tract
improvement or improvements is necessitated or required by the proposed
development application and where no other property owners receive
a special benefit thereby, the municipal agency shall require the
applicant, as a condition of approval, at the applicant's expense,
to provide for and construct such improvements as if such were on-tract
improvements and shall forward a report of its findings to the Borough
Council.
(5)
In cases where the need for any off-tract improvement is necessitated
by the proposed development application and where the municipal agency
determines that properties outside the development will also benefit
by the improvement, the municipal agency shall forward to the Borough
Council a report containing a list and description of all such improvements,
together with its request that the Borough Council determine the matters
in Paragraph B below and advise the municipal agency of the Borough
Council's decision.
B. Determinations by Borough Council. Upon receipt of the recommendations
and report of the municipal agency, the Borough Council shall, within
30 days from the receipt thereof, determine and advise the municipal
agency whether:
(1)
The recommended off-tract improvement should be undertaken in
the manner recommended by the municipal agency or whether the Borough
Council is of the opinion that an alternative improvement should be
considered by the municipal agency.
(2)
The improvement is to be constructed or installed by the Borough
as a general improvement or as a local improvement.
(3)
The improvement is to be constructed or installed by the developer
under a formula providing for partial reimbursement by the Borough
or otherwise for benefits to properties other than the development
where appropriate.
C. Amount of contribution. Once the Borough Council has made the determinations
in Paragraph B(3) above, the developer may be required to provide,
as a condition for final approval of the development, a combination
of performance and maintenance guarantees, cash contributions, developer's
agreements and/or other forms of surety permitted by law to insure
payment to the Borough of one of the following amounts:
(1)
If the improvement is to be constructed by the Borough as a
local improvement, the developer's proportionate share of the total
cost of the improvement.
(2)
If the improvement is to be constructed by the developer, the
total cost of the off-tract improvement less an offset for the value
of the special benefit to properties other than the developer's.
D. Pro-rata formula for determining applicant's share of off-tract improvements.
Where an off-tract improvement is required, the following criteria
shall be utilized in determining the proportionate share of such improvements
to the applicant:
(1)
Roadways. For street widening, alignment, channelization of
intersections, construction of barriers, new or improved traffic signalization,
signs, curbs, sidewalks, trees, utility improvements not covered elsewhere,
the construction or reconstruction of new or existing streets and
other associated street or traffic improvements, the applicant's proportionate
costs shall be determined as follows:
Future peak-hour traffic generated by the development
Future peak-hour
|
x
|
Total cost of the roadway improvements and/or extension
|
=
|
Developer's cost
|
(2)
Drainage improvements. For stormwater and drainage improvements,
including installation, relocation or replacement of transmission
lines, culverts, catch basins and the installation, relocation or
replacement of other appurtenances associated therewith, the applicant's
proportionate share shall be determined as follows:
Development cubic feet per second ("cfs")
Total tributary cfs
|
x
|
Total enlargement of improvement cost of drainage facilities
|
=
|
Developer's cost
|
(3)
Sanitary sewers. For distribution facilities, including the
installation, relocation or replacement of collector, trunk and interceptor
sewers and the installation, relocation or replacement of other appurtenances
associated therewith, the applicant's proportionate share shall be
computed as follows:
(3.1)
If the existing system does not have adequate capacity for the
total developed drainage basin, the prorated enlargement of improvement
share shall be computed as follows:
Development gallons per day ("gpd")
Total tributary gpd
|
x
|
Total enlargement or improvement cost
|
=
|
Developer's cost
|
(3.2)
If it is necessary to construct a new system in order to develop
the subdivision, the prorated enlargement share to the developer shall
be computed as follows:
Development tributary gpd
Total tributary gpd
|
x
|
Total project cost
|
=
|
Developer's cost
|
(4)
Water. For water distribution facilities, including the installation
of new water mains, the extension of existing water mains, the relocation
of such facilities and the installation of other appurtenances associated
therewith, the applicant's proportionate share shall be computed as
follows:
Use of Water (gpd) by the developer
Total use of water (gpd) of area served by the improvement
|
x
|
improvement cost
|
=
|
Developer's cost
|
(5)
Adjustments to formulas. It is recognized that the foregoing
formulas may require adjustment because of peculiar or exceptional
circumstances or may require that application of alternative criteria
in order to arrive at a fair and equitable distribution of cost. For
example, in the case of linear improvements, such as streets, water
and sewer lines and storm drains, length of property frontage may
be a more appropriate determining factor. In such instances, the municipal
agency may modify or adjust the formulas.
E. Cash contributions; methods of payment.
(1)
The estimated developer's cost plus a reasonable inflation cost
for the off-tract improvement allocated to the developer, if deposited
in cash, shall be paid by the developer to the Borough Treasurer with
a copy of the applicant's transmittal letter forwarded to the governing
body, the Borough Engineer and the municipal agency. Any and all monies
received by the Treasurer shall be deposited in a separate interest-bearing
account to the credit of the Borough, and such funds shall be used
only for the improvements for which they are deposited or improvements
serving the same purpose. If such improvements are not initiated by
the developer or the Borough within a period of 10 years from the
date of payment or other mutually agreeable period of time, then the
funds so deposited shall be returned to the developer, together with
accumulated interest less 10% of accumulated interest for administration
cost. If, after diligent inquiry, the Borough is unable to locate
the developer or its successor in order to return said funds, then
the funds so deposited shall be placed in the Borough's general capital
improvement fund and shall not be returnable to the developer thereafter.
(2)
In the event the payment by the developer to the Borough Treasurer
provided herein is less than its share of the actual cost of the off-tract
improvements, then it shall be required to pay its additional share
of the cost thereof.
F. Assessment of properties. The Borough may adopt a local improvement
assessment ordinance for the purpose of construction and installation
of the off-tract improvements, based upon the cost for the project,
including administration and finance charges. Any portion of the cost
of the improvements not defrayed by a developer may be assessed by
the Borough against benefiting property owners according to their
pro-rata share. Any such assessments for benefits made against the
developer or its successors in interest shall be first offset by a
pro-rata share credit of the allocated costs previously deposited
with the Borough Treasurer pertaining thereto. The developer or its
successors in interest shall not be liable for any part of an assessment
for such improvements unless the assessment exceeds its pro-rata share
credit for its deposit, and then only to the extent of the deficiency.
G. Credit for work performed. In the event the developer installs and
constructs an off-tract improvement or any portion thereof, which
improvement is accepted by the Borough, then the cost shall be treated
as a credit against any future assessment for that particular off-tract
improvement or portion thereof later constructed or completed by the
Borough in the same manner as if the developer has deposited its apportioned
cost with the Borough Treasurer, as provided herein.
H. Installation of improvements by applicant. At the discretion and
option of the Borough Council, the Borough Council may enter into
a contract with the developer providing for the installation and construction
of the off-tract improvements by the developer upon contribution by
the Borough of the remaining unallocated portion of the cost of the
off-tract improvement. In the event the Borough elects to contribute
to the cost and expense of installation of the off-tract improvements
by the developer, the portion contributed by the Borough shall be
subject to possible certification and assessment as a local improvement
against benefiting property owners in the manner provided by law,
if applicable.
I. Design standards. Should the developer and the Borough enter into
a contract for the construction and installation of the off-tract
improvements to be done by the developer, the developer shall observe
all requirements and principles of this chapter and other ordinances
in the design of such improvements.
J. Condition of approval. The term set forth herein shall be a condition
of either preliminary approval or final approval of a subdivision
or site plan. If not imposed as a condition of preliminary approval,
such off-tract improvements and the apportionment of the cost thereof
shall be considered improvements under N.J.S.A. 40:55D-1 et seq.,
which may be imposed at the time of final approval.
K. Notice and appeal. Before apportioning the cost of off-tract improvements
to a developer, the municipal agency shall notify and afford the developer
an opportunity to be heard thereon at a public meeting. The developer
may appeal from the Borough Council's decision to the Superior Court
within 45 days from the date of the Council's decision.
[Added 3-2-2006 by Ord.
No. 1-2006; amended 6-3-2021 by Ord. No. 9-2021; 4-18-2024 by Ord. No. 3-2024]
A. Scope and purpose.
(1)
Policy statement. Flood control, groundwater recharge, and pollutant
reduction shall be achieved through the use of stormwater management
measures, including green infrastructure Best Management Practices
(GI BMPs) and nonstructural stormwater management strategies. GI BMPs
should be utilized to meet the goal of maintaining natural hydrology
to reduce stormwater runoff volume, reduce erosion, encourage infiltration
and groundwater recharge, and reduce pollution. GI BMPs should be
developed based upon physical site conditions and the origin, nature
and the anticipated quantity, or amount, of potential pollutants.
Multiple stormwater management BMPs may be necessary to achieve the
established performance standards for green infrastructure, water
quality, quantity, and groundwater recharge.
(2)
Purpose. The purpose of this section is to establish minimum stormwater management requirements and controls for "major development," as defined below in Subsection
B.
(3)
Applicability.
(a)
This section shall be applicable to the following major developments:
[1] Nonresidential major developments and redevelopment
projects; and
[2] Aspects of residential major developments and redevelopment
projects that are not pre-empted by the Residential Site Improvement
Standards at N.J.A.C. 5:21 et seq.
(b)
This section shall also be applicable to all major developments
undertaken by the Borough of Morris Plains.
(c)
Applicability of this section to major developments shall comply
with last amended N.J.A.C. 7:8-1.6, incorporated herein by reference.
(4)
Compatibility with other permit and ordinance requirements.
Development approvals issued pursuant to this section are to be considered
an integral part of development approvals and do not relieve the applicant
of the responsibility to secure required permits or approvals for
activities regulated by any other applicable code, rule, act, or ordinance.
In their interpretation and application, the provisions of this section
shall be held to be the minimum requirements for the promotion of
the public health, safety, and general welfare. This section is not
intended to interfere with, abrogate, or annul any other ordinances,
rule or regulation, statute, or other provision of law except that,
where any provision of this section imposes restrictions different
from those imposed by any other ordinance, rule or regulation, or
other provision of law, the more restrictive provisions or higher
standards shall control.
B. Definitions. For the purpose of this section, the following terms,
phrases, words and their derivations shall have the meanings stated
herein unless their use in the text of this section clearly demonstrates
a different meaning. When not inconsistent with the context, words
used in the present tense include the future, words used in the plural
number include the singular number, and words used in the singular
number include the plural number. The word "shall" is always mandatory
and not merely directory. The definitions used in this section shall
be the same as the last amended Stormwater Management Rules at N.J.A.C.
7:8-1.2, incorporated herein by reference.
C. Design and performance standards for stormwater management measures.
This section establishes design and performance standards for stormwater
management measures for major development intended to minimize the
adverse impact of stormwater runoff on water quality and water quantity
and loss of groundwater recharge in receiving water bodies. Design
and performance standards for stormwater management measures shall
comply with last amended N.J.A.C. 7:8-5, incorporated herein by reference.
D. Solids and floatable materials control standards.
(1)
Site design features identified under Subsection
C above, or alternative designs in accordance with Subsection
C above, to prevent discharge of trash and debris from drainage systems shall comply with the following standard to control passage of solid and floatable materials through storm drain inlets. For purposes of this subsection, "solid and floatable materials" means sediment, debris, trash, and other floating, suspended, or settleable solids. For exemptions to this standard see Subsection D(1)(b) below.
(a)
Design engineers shall use one of the following grates whenever
they use a grate in pavement or another ground surface to collect
stormwater from that surface into a storm drain or surface water body
under that grate:
[1] The New Jersey Department of Transportation (NJDOT)
bicycle safe grate, which is described in Chapter 2.4 of the NJDOT
Bicycle Compatible Roadways and Bikeways Planning and Design Guidelines;
or
[2] A different grate, if each individual clear space
in that grate has an area of no more than seven square inches, or
is no greater than 0.5 inches across the smallest dimension. Note
that the Residential Site Improvement Standards at N.J.A.C. 5:21 include
requirements for bicycle safe grates. Examples of grates subject to
this standard include grates in grate inlets, the grate portion (non-curb-opening
portion) of combination inlets, grates on storm sewer manholes, ditch
grates, trench grates, and grates of spacer bars in slotted drains.
Examples of ground surfaces include surfaces of roads (including bridges),
driveways, parking areas, bikeways, plazas, sidewalks, lawns, fields,
open channels, and stormwater system floors used to collect stormwater
from the surface into a storm drain or surface water body.
[3] For curb-opening inlets, including curb-opening
inlets in combination inlets, the clear space in that curb opening,
or each individual clear space if the curb opening has two or more
clear spaces, shall have an area of no more than seven square inches,
or be no greater than two inches across the smallest dimension.
(b)
The standard in Subsection D(1)(a) above does not apply:
[1] Where each individual clear space in the curb opening
in existing curb-opening inlet does not have an area of more than
nine square inches;
[2] Where the municipality agrees that the standards
would cause inadequate hydraulic performance that could not practicably
be overcome by using additional or larger storm drain inlets;
[3] Where flows from the water quality design storm
as specified in the last amended Stormwater Management rules at N.J.A.C.
7:8 et seq. are conveyed through any device (e.g., end of pipe netting
facility, manufactured treatment device, or a catch basin hood) that
is designed, at a minimum, to prevent delivery of all solid and floatable
materials that could not pass through one of the following:
[a] A rectangular space 4 5/8 (4.625) inches long
and 1.5 inches wide (this option does not apply for outfall netting
facilities); or
[b] A bar screen having a bar spacing of 0.5 inches.
Note that these exemptions do not authorize any infringement
of requirements in the Residential Site Improvement Standards for
bicycle safe grates in new residential development [N.J.A.C. 5:21-4.18(b)2
and 7.4(b)1].
[4] Where flows are conveyed through a trash rack that
has parallel bars with one-inch spacing between the bars, to the elevation
of the Water Quality Design Storm as specified in N.J.A.C. 7:8; or
[5] Where the New Jersey Department of Environmental
Protection determines, pursuant to the New Jersey Register of Historic
Places Rules at N.J.A.C. 7:4-7.2(c), that action to meet this standard
is an undertaking that constitutes an encroachment or will damage
or destroy the New Jersey Register listed historic property.
E. Safety standards for stormwater management basins.
(1)
This section sets forth requirements to protect public safety
through the proper design and operation of stormwater management basins.
This section applies to any new stormwater management basin. Safety
standards for stormwater management measures shall comply with last
amended N.J.A.C. 7:8-6, incorporated herein by reference.
(2)
Safety ledge illustration.
Elevation View - Basin Safety Ledge Configuration
|
F. Requirements for a site development stormwater plan.
(1)
Submission of site development stormwater plan.
(a)
Whenever an applicant seeks municipal approval of a development
subject to this section, the applicant shall submit all of the required
components of the Checklist for the Site Development Stormwater Plan
at Subsection F(3) below as part of the submission of the application
for approval.
(b)
The applicant shall demonstrate that the project meets the standards
set forth in this section.
(c)
The applicant shall submit three copies of the materials listed
in the checklist for site development stormwater plans in accordance
with Subsection F(3) of this section.
(2)
Site development stormwater plan approval. The applicant's
site development project shall be reviewed as a part of the review
process by the municipal board or official from which municipal approval
is sought. That municipal board or official shall consult the municipality's
review engineer to determine if all of the checklist requirements
have been satisfied and to determine if the project meets the standards
set forth in this section.
(3)
Submission of site development stormwater plan. The following
information shall be required:
(a)
Topographic base map. The reviewing engineer may require upstream
tributary drainage system information as necessary. It is recommended
that the topographic base map of the site be submitted which extends
a minimum of 200 feet beyond the limits of the proposed development,
at a scale of one inch equals 200 feet or greater, showing two-foot
contour intervals. The map as appropriate may indicate the following:
existing surface water drainage, shorelines, steep slopes, soils,
erodible soils, perennial or intermittent streams that drain into
or upstream of the Category One waters, wetlands and floodplains along
with their appropriate buffer strips, marshlands and other wetlands,
pervious or vegetative surfaces, existing man-made structures, roads,
bearing and distances of property lines, and significant natural and
manmade features not otherwise shown.
(b)
Environmental site analysis. A written and graphic description
of the natural and man-made features of the site and its surroundings
should be submitted. This description should include a discussion
of soil conditions, slopes, wetlands, waterways and vegetation on
the site. Particular attention should be given to unique, unusual,
or environmentally sensitive features and to those that provide particular
opportunities or constraints for development.
(c)
Project description and site plans. A map (or maps) at the scale
of the topographical base map indicating the location of existing
and proposed buildings roads, parking areas, utilities, structural
facilities for stormwater management and sediment control, and other
permanent structures. The map(s) shall also clearly show areas where
alterations will occur in the natural terrain and cover, including
lawns and other landscaping, and seasonal high groundwater elevations.
A written description of the site plan and justification for proposed
changes in natural conditions shall also be provided.
(d)
Land use planning and source control plan. This plan shall provide a demonstration of how the goals and standards of Subsection
C is being met. The focus of this plan shall be to describe how the site is being developed to meet the objective of controlling groundwater recharge, stormwater quality and stormwater quantity problems at the source by land management and source controls whenever possible.
(e)
Stormwater management facilities map. The following information,
illustrated on a map of the same scale as the topographic base map,
shall be included:
[1] Total area to be disturbed, paved or built upon,
proposed surface contours, land area to be occupied by the stormwater
management facilities and the type of vegetation thereon, and details
of the proposed plan to control and dispose of stormwater.
[2] Details of all stormwater management facility designs,
during and after construction, including discharge provisions, discharge
capacity for each outlet at different levels of detention and emergency
spillway provisions with maximum discharge capacity of each spillway.
(f)
Calculations.
[1] Comprehensive hydrologic and hydraulic design calculations for the pre-development and post-development conditions for the design storms specified in Subsection
C of this section.
[2] When the proposed stormwater management control
measures depend on the hydrologic properties of soils or require certain
separation from the seasonal high water table, then a soils report
shall be submitted. The soils report shall be based on onsite boring
logs or soil pit profiles. The number and location of required soil
borings or soil pits shall be determined based on what is needed to
determine the suitability and distribution of soils present at the
location of the control measure.
(g)
Maintenance and repair plan. The design and planning of the stormwater management facility shall meet the maintenance requirements of Subsection
G.
(h)
Waiver from submission requirements. The municipal official
or board reviewing an application under this section may, in consultation
with the municipality's review engineer, waive submission of
any of the requirements in Subsection F(3)(a) through F(3)(h) of this
section when it can be demonstrated that the information requested
is impossible to obtain or it would create a hardship on the applicant
to obtain and its absence will not materially affect the review process.
G. Maintenance and repair.
(1)
Applicability. Projects subject to review as in Subsection A(3)
of this section shall comply with the requirements of Subsection G(2)
and G(3).
(2)
General maintenance.
(a)
Maintenance for stormwater management measures shall comply
with last amended N.J.A.C. 7:8-5.8, incorporated herein by reference.
(b)
The following requirements of N.J.A.C. 7:8-5.8 do not apply
to stormwater management facilities that are dedicated to and accepted
by the municipality or another governmental agency, subject to all
applicable municipal stormwater general permit conditions, as issued
by the Department:
[1] If the maintenance plan identifies a person other
than the property owner (for example, a developer, a public agency
or homeowners' association) as having the responsibility for
maintenance, the plan shall include documentation of such person's
or entity's agreement to assume this responsibility, or of the
owner's obligation to dedicate a stormwater management facility
to such person under an applicable ordinance or regulation; and
[2] Responsibility for maintenance shall not be assigned
or transferred to the owner or tenant of an individual property in
a residential development or project, unless such owner or tenant
owns or leases the entire residential development or project. The
individual property owner may be assigned incidental tasks, such as
weeding of a green infrastructure BMP, provided the individual agrees
to assume these tasks; however, the individual cannot be legally responsible
for all of the maintenance required.
[3] The developer shall post a two-year maintenance
guarantee in accordance with N.J.S.A. 40:55D-53.
(c)
In the event that the stormwater management facility becomes
a danger to public safety or public health, or if it is in need of
maintenance or repair, the municipality shall so notify the responsible
person in writing. Upon receipt of that notice, the responsible person
shall have 14 days to effect maintenance and repair of the facility
in a manner that is approved by the municipal engineer or his designee.
The municipality, in its discretion, may extend the time allowed for
effecting maintenance and repair for good cause. If the responsible
person fails or refuses to perform such maintenance and repair, the
municipality or County may immediately proceed to do so and shall
bill the cost thereof to the responsible person. Nonpayment of such
bill may result in a lien on the property.
(3)
Nothing in this subsection shall preclude the municipality in
which the major development is located from requiring the posting
of a performance or maintenance guarantee in accordance with N.J.S.A.
40:55D-53.
H. Penalties. Any person(s) who erects, constructs, alters, repairs,
converts, maintains, or uses any building, structure or land in violation
of this section shall be subject to the following penalties:
(1)
For the first offense a fine of $250.
(2)
For the second offense a fine of $500.
(3)
For each violation thereafter, a fine of $1,000.