[2000 Code § 25-1]
This chapter shall be known and may be cited as the Land Use Procedures Ordinance of the Borough of Avalon.
[2000 Code § 25-2.1]
Effective January 1, 2003 and pursuant to N.J.S.A. 40:55D-25(c), a Planning Board is hereby established to be hereafter known as the Planning Board of the Borough of Avalon which shall consist of nine (9) members and four (4) alternates. The Planning Board so constituted shall exercise, to the same extent and subject to the same restrictions, all the powers of a Board of Adjustment provided, however, that the Class I and the Class III members thereof shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of Section 57 of P.L. 1975, c. 291 (C. 40:55D-70). Membership on the Planning Board shall consist of the following classes:
Class I -
The Mayor or the Mayor's designee in the absence of the Mayor.
Class II -
One of the officials of the Borough other than a member of the Governing Body to be appointed by the Mayor.
Class III -
A member of the Borough Council to be appointed by it.
Class IV -
Six (6) other citizens of the municipality to be appointed by the Mayor with the advice and consent of the Borough Council. The members of Class IV shall hold no other municipal office, position or employment. No member of the Board of Education may be a Class IV member of the Planning Board except that in the case of a nine (9) member board, one (1) Class IV member may be a member of the Board of Education.
[2000 Code § 25-2.2]
The name of the consolidated Planning and Zoning Board shall be the Planning/Zoning Board of the Borough of Avalon.
[2000 Code § 25-2.3]
The governing body of any municipality in which the Planning Board exercises the powers of the Board of Adjustment pursuant to N.J.S.A. 40:55D-25(c) shall provide for the appointment to the Planning Board of not more than four (4) alternate members who shall be municipal residents. Such alternate members shall be appointed as Class IV members by the Mayor subject to the advise and consent of the Borough Council. Alternate members shall be designated at the time of appointment by the Mayor as Alternate #1, Alternate #2, Alternate #3 and Alternate #4.
[2000 Code § 25-2.4]
The terms of the members of the Planning Board shall be as follows:
The term of the members composing Class I shall correspond to the Mayor's official tenure or if the member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's official tenure.
The terms of the members composing Class II and Class III shall be for one (1) year or terminate at the completion of their respective terms of office, whichever occurs first except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three (3) years or terminate at the completion of his/her term of office as a member of the Environmental Commission, whichever occurs first.
The term of a Class IV member who is also a member of the Board of Education shall terminate when he/she is no longer a member of such other body or at the completion of his/her Class IV term, whichever occurs first.
The terms of all Class IV members first appointed shall be so determined that to the greatest practical extent the expiration of such terms shall be distributed evenly over the first four (4) years after their appointments provided that the initial Class IV term of no member shall exceed four (4) years. Thereafter, the Class IV term of each such member shall be four (4) years. If a vacancy in any class shall occur otherwise than by expiration of the Planning Board term, it shall be filed by appointment, as above provided, for the unexpired term.
[2000 Code § 25-2.5]
The terms of the Alternate members shall be for two (2) years except that the terms of the Alternate members shall be such that the terms of not more than one (1) Alternate member shall expire in any one (1) year provided, however, that where four (4) Alternates have been appointed, the term of not more than two (2) Alternate members shall expire in any one (1) year and provided further that in no instance shall the terms of the Alternate members first appointed exceed two (2) years. A vacancy occurring otherwise than by expiration of terms shall be filed by the appointing authority for the unexpired term only.
[2000 Code § 25-2.6]
No member of the Planning Board shall be permitted to act on any matter in which he/she has, either directly or indirectly, any personal or financial interest. No Alternate member shall be permitted to act on any matter in which he/she has either directly or indirectly any personal or financial interest.
[2000 Code § 25-2.7]
Any member of the Planning Board including Alternate members, except Class I members, after a public hearing if she or he requests one, may be removed by the Borough Council for cause.
[2000 Code § 25-2.8]
Alternate members may participate in all matters but may not vote except in the absence or disqualification of a regular member of any class. Participation of Alternate members shall not deem to increase the size of the Planning Board established by this chapter. The Planning Board shall not delay a vote in order that a regular member may vote instead of an Alternate member. In the event that a choice must be made as to which Alternate member is to vote, Alternate #1 shall vote.
[2000 Code § 25-2.9]
The Planning Board shall elect a Chairman and a Vice-Chairman from the members of Class IV and shall select a Secretary who may or may not be a member of the Planning Board. The Secretary may be a Borough employee.
[2000 Code § 25-2.10]
There is hereby created the office of Planning Board Attorney. The Planning Board shall annually appoint and fix the compensation of the Planning Board Attorney who shall be a licensed attorney of the State of New Jersey and shall be an attorney other than the Borough Solicitor. If the Planning Board Attorney is to receive a salary, it shall be consistent with the Salary Ordinance of the Borough. Any professional services contract negotiated between the Planning Board and the Planning Board Attorney shall conform in all respects to the requirements of the Local Public Contracts Law as it applies to professional services contracts and the rules and regulations promulgated by the Treasurer of the State of New Jersey as the same may from time to time be amended. Said contract shall also conform in all respects to the requirements of the Atlantic County Joint Insurance Fund or such other insurance carriers as may be insuring the Borough at the time. All such professional services contracts shall be submitted to and approved by the Borough Solicitor prior to being executed by the Planning Board. Copies of all such contracts shall be filed with the Borough Clerk and the Chief Financial Officer of the Borough and shall be deemed public records. No contract shall be awarded which exceeds the annual municipal appropriation for such purpose and without first obtaining a Certificate of Availability of Funds from the Chief Financial Officer of the Borough.
[2000 Code § 25-2.11]
The Planning Board may also employ or contract for the services of experts and other staff and services as it may deem necessary but shall not exceed, exclusive of gifts or grants, the amount appropriated by the Borough Council in the Annual Municipal Budget. Before awarding any such contract, the Planning Board must first obtain a Certificate of Availability of Funds from the Chief Financial Officer of the Borough.
[2000 Code § 25-2.12]
The Planning Board shall exercise generally all powers now or hereafter conferred upon planning boards by the Municipal Land Use Law of the State of New Jersey and shall also exercise all of the powers conferred upon zoning board of adjustments by the Municipal Land Use Law of the State of New Jersey pursuant to N.J.S.A. 40:55D-1, et seq.
a. 
Powers of the Planning Board.
1. 
The Planning Board shall have the following powers pursuant to N.J.S.A. 40:55D-25 as follows:
(a) 
The master plan pursuant to N.J.S.A. 40:55D-28, et seq.;
(b) 
Subdivision control and site plan review pursuant to N.J.S.A. 40:55D-37, et seq.;
(c) 
The official map pursuant to N.J.S.A. 40:55D-32, et seq.;
(d) 
The zoning ordinance including conditional use pursuant to N.J.S.A. 40:55D-62, et seq.;
(e) 
The capital improvement program pursuant to N.J.S.A. 40:55D-29, et seq.;
(f) 
Variances and certain building permits in conjunction with subdivision, site plan and conditional use approval pursuant to N.J.S.A. 40:55D-60, et seq.
2. 
The Planning Board may:
(a) 
Participate in the preparation and review of programs or plans required by State or Federal law or regulation;
(b) 
Assemble data on a continuing basis as part of a continuous planning process; and
(c) 
Perform such other advisory duties as are assigned by ordinance or resolution of the Governing Body for the aid and assistance of the Governing Body or other agencies or officers.
3. 
The Planning Board shall also have the powers set forth in N.J.S.A. 40:55D-70 as follows:
(a) 
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the Zoning Ordinance;
(b) 
Hear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by any zoning or official map ordinance, in accordance with this act;
(c) 
(1) 
Where (a) by reason of exceptional narrowness, shallowness, or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to N.J.S.A. 40:55D-62, et seq. would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship;
(2) 
Where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62, et seq. provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in paragraph a3(d) of this subsection shall be granted under this subsection; and provided further that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use, in conjunction with which the Planning Board has power to review a request for a variance pursuant to N.J.S.A. 40:55D-60; and
(d) 
In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62, et seq. to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4, (5) an increase in the permitted density as defined in N.J.S.A. 40:55D-4, except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds ten (10) feet or ten (10%) percent the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five (5) members, in the case of a municipal board, or two-thirds (2/3) of the full authorized membership, in the case of a regional board, pursuant to N.J.S.A. 40:55D-77, et seq.
If an application for development requests one or more variances but not a variance for a purpose enumerated in paragraph a3(d) of this subsection, the decision on the requested variance or variances shall be rendered under paragraph a3(c) of this subsection.
No variance or other relief may be granted under the terms of this section, including variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. In respect to any airport safety zones delineated under the Air Safety and Zoning Act of 1983, P.L. 1983, c. 260 (C. 6:1-80, et seq.), no variance or other relief may be granted under the terms of this section, permitting the creation or establishment of a nonconforming use which would be prohibited under standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the Planning Board shall act.
[2000 Code § 25-2.13]
Pursuant to N.J.S.A. 40:55D-25(c), the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of N.J.S.A. 40:55D-70.
[2000 Code § 25-3.1; Ord. No. 762-2017]
Effective January 1, 2018 the following application fees and escrow fees for professional review shall be charged in connection with those applications for development to the Planning/Zoning Board of the Borough of Avalon as set forth below:
APPLICATION TYPE
APPLICATION FEE
ESCROW FEE
1
Variances
(a) Appeals or Interpretations
$400
$750
(b) BULK Residential
$400 per variance
$1,200
(c) BULK Non-Residential
$400 per variance
$1,200
(d) USE Residential
$400 per variance
$1,200
(e) USE Non-Residential
$400 per variance
$1,200
2
Minor Subdivisions
$700
$1,200
3
Major Subdivisions
(a) Preliminary Approval
$900
$1,500
(b) Final Approval
$400
$750
4
Site Plan Review
(a) Waiver
$400
$750
(b) Swimming Pool
$500
$350
(c) Minor Residential (1-14 units)
(1) Preliminary Approval
$700
$1,500
(2) Final Approval
$300
$750
(d) Major Residential (15 or more units)
(1) Preliminary Approval
$800
$2,000
(2) Final Approval
$400
$1,000
(e) Minor Commercial or Mixed Use (under 6,000 sq. ft. of building area)
(1) Preliminary Approval
$900
$1,800
(2) Final Approval
$400
$900
(f) Major Commercial or Mixed-Use (6,000 sq. ft. or more of building space)
(1) Preliminary Approval
$1,000
$3,000
(2) Final Approval
$400
$1,500
5
Informal Review of Concept Plan
Same as if formal application filed
Same as if formal application filed
6
Extension of Preliminary and Major Subdivision or Site Plan Approval
$300
$500
7
Submission of Revised Plans (after initial submission and prior to hearing)
$400
$600
8
Sign
$250
$350
9
Direction for issuance of a permit
$200
$600
10
Special Meetings
$700
$1,200
11
Property Owners Lists.
The Municipal Assessor shall charge an applicant an amount not to exceed twenty-five cents ($.25) per person or ten ($10.00) dollars, whichever is greater, to make and to certify from the current tax duplicates the names and addresses of owners of real estate to whom the applicant is required to give notice pursuant to N.J.S.A. 40:55D-12.
12
Administrative Fees.
Pursuant to N.J.S.A. 40:55D-8, an administrative fee shall be charged for the preparation of a transcript of the recording of a Planning Board hearing at the current rate, depending upon the length of transcript.
[2000 Code § 25-3.2; New]
a. 
Payment of all application fees and escrow deposits as provided herein shall be a condition to the certification by the Planning Board Secretary that an application is complete and, in no event, shall an application be deemed complete unless all application fees and escrow deposit have been paid by the applicant. Payment of the application fee and escrow deposit shall be made by separate check, both payable to the Borough of Avalon and forwarded to the Planning Board Secretary for deposit by the Chief Financial Officer. The Chief Financial Officer shall deposit the application fee with the general funds of the Borough and the escrow deposit shall be deposited in a Developer's Escrow Account. Under no circumstances shall the application fee be refundable to the applicant; however, the amounts deposited as an Escrow Deposit shall be disposed of as provided herein.
b. 
The Chief Financial Officer shall make all of the payments from the escrow deposit of an applicant to professionals for services rendered to the Planning Board in connection with that application for under the provisions of N.J.S.A. 40:55D-1 et seq. The application review and inspection charges shall be limited only to professional charges for review of the application, review and preparation of documents, inspections of developments under construction, attendance at application hearings, preparation of resolutions, correspondence and contacts with the other applicable professionals and Board representatives, and for 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 only cost that shall be added to any such charges shall be actual out-of-pocket expenses of such professionals or consultants including normal and typical expenses incurred in processing applications and inspecting improvements. No applicant shall be separately charged for any Borough, clerical or administrative functions, overhead expenses, meeting room charges or any of the Borough costs and expenses which are included in the application fee, or except as provided for specifically by statute, nor shall a Borough professional add any such charge to a bill.
c. 
Deposits received from any applicant in excess of five thousand ($5,000.00) dollars shall be held by the Chief Financial Officer in a special interest-bearing Developer's Escrow Account, and upon receipt of bills from professionals and approval of said bills as hereinafter provided for, the Chief Financial Officer may use such funds to pay the bills submitted by such professionals or experts. The Borough shall not be required to refund an amount of interest paid on a deposit which does not exceed one hundred ($100.00) dollars for the year. If the amount of interest exceeds one hundred ($100.00) dollars, the entire amount shall belong to the applicant and shall be refunded to him by the Borough annually or at the time the escrow deposit is repaid or applied for the purposes for which it was deposited, as the case may be, except that the Borough may retain for administrative expenses a sum equivalent to no more than 33-1/3% of that entire amount, which shall be in lieu of all other administrative and custodial expenses. All sums not actually so expended shall be refunded to the applicant within ninety (90) days after the final decision by the Planning Board with respect to such application, upon certification by the Board Secretary that such application has been finally decided.
d. 
Each payment charged to the escrow deposit as provided herein shall be pursuant to a voucher from the professional which voucher shall identify the personnel performing the service, and each date the services were 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 on a monthly basis in accordance with the schedules and procedures established by the Chief Financial Officer. The professional shall also send an informational copy of all vouchers or statements to the applicant and to the Planning Board Secretary.
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 deposit. This information shall be provided on a quarterly basis, if monthly charges are one thousand ($1,000.00) dollars or less, or on a monthly basis if monthly charges exceed one thousand ($1,000.00) dollars. If an escrow deposit account contains insufficient funds to enable the Borough Planning Board to perform required application reviews or improvement inspections, the Chief Financial Officer shall provide the applicant with a notice of the insufficient escrow deposit balance. In order for work to continue with regard to the application for development, the applicant shall, within a reasonable time period, post an additional escrow deposit to the account in an amount to be agreed upon by the Planning Board Secretary and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.
e. 
No zoning permits, building permits, certificates of occupancy or any other types of permits may be issued with respect to any approved application for development until all bills for reimbursable services have been received by the Borough for professionals rendering services in connection with such application and full payment has been made on behalf of the applicant.
f. 
The following close-out procedures shall apply to all escrow deposit accounts established under the provisions of N.J.S.A. 40:55D-1 et seq. and shall commence after the Planning Board has granted final approval and signed the subdivision plat or site plan, in the case of application review escrow deposits, or after the improvements have been approved in accordance with N.J.S.A. 40:55D-53, in the case of improvement inspection escrows and deposits.
The applicant shall send written notice by certified mail to the Chief Financial Officer and the Planning Board and to the relevant municipal professional, that the application or the improvements, as the case may be, are completed. After receipt of such notice, the professional shall render a final bill to the Chief Financial Officer within thirty (30) days and shall send an informational copy to the applicant. The Chief Financial Officer shall render a written final accounting to the applicant on the uses to which the deposit was put within forty-five (45) days of receipt of the final bill. Any balances remaining in the escrow deposit account, including interest in accordance with N.J.S.A. 40:55D-53.1 shall be refunded to the applicant along with the final accounting.
g. 
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. Review fees shall be charged only in connection with an application for development presently pending before the Planning Board or upon review of compliance with the 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 municipal jurisdiction except to the extent consultation with a State agency is necessary due to the effect of State approvals on the subdivision or site plan.
h. 
The cost of the installation of improvements for the purposes of N.J.S.A. 40:55D-53 shall be estimated by the Planning Board Engineer, who shall be designated by the Borough to act on its behalf for all purposes under this paragraph h., based on documented construction costs for the public improvements prevailing in the general area of the Borough. The applicant shall reimburse the Borough for reasonable inspection fees paid to the Planning Board Engineer for the inspection of improvements, and the Borough shall require the applicant to deposit for the inspection fee an amount not to exceed, except for extraordinary circumstances, the greater of five hundred ($500.00) dollars or five (5%) percent of the cost of said improvements, which shall be charged to the applicant in accordance with N.J.S.A. 40:55D-53(h). The applicant may appeal the Planning Board Engineer's estimate to the County Construction Board of Appeals, established pursuant to N.J.S.A. 52:27D-127. Inspection fees charged by the Planning Board Engineer shall be charged only for actual work shown on a subdivision or site plan or required by an approving resolution. Professionals inspecting improvements under construction shall charge only for inspections 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.
i. 
If the Borough retains a different professional or consultant in the place of a professional originally responsible for development application review, or inspection of improvements, the Borough or the Planning Board 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 Planning Board shall not bill the applicant or charge to the escrow deposit account for any such services.
j. 
1. 
An applicant shall notify in writing the Borough Council with copies to the Chief Financial Officer, the Planning Board and the professional whenever the applicant disputes the charges made by a professional for a service rendered to the Borough in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to N.J.S.A. 40:55D-53.2. The Borough Council or its designee shall within a reasonable time attempt to remediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals, established pursuant to N.J.S.A. 52:27D-127 any charge to an escrow deposit account by any Borough professional or consultant, or the cost of the installation of improvements estimated by the Planning Board Engineer pursuant to N.J.S.A. 40:55D-53.4. An applicant or his authorized agent shall submit the appeal in writing to the County Construction Board of Appeals. The applicant or his authorized agent shall simultaneously send a copy of the appeal to the Borough, the Planning Board and any professional whose charges are the subject of the appeal. An applicant shall file an appeal within forty-five (45) days from receipt of the informational copy of the professional's bill required by subsection N.J.S.A. 40:55D-53.2(c), except that if the professional has not supplied the applicant with an informational copy of the bill, then the applicant shall file his appeal within sixty (60) days from receipt of the Borough statement of activity against the escrow deposit account required by N.J.S.A. 40:55D-53.2(c). An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six (6) 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.
2. 
Appeals shall be taken in accordance with the rules and procedures established by the County Construction Board of Appeals.
3. 
During the pendency of any appeal, the Borough or Planning Board 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 or maintenance guarantees, the issuance of construction 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 deposit account for which an appeal has been filed. If a charge is disallowed after payment, the Chief Financial Officer shall reimburse the escrow deposit 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 municipality in the amount of any such disallowed charge.