Borough of Avon-by-the-Sea, NJ Article VII Planning Board

§ 113-30 Planning Board to Exercise Powers of the Board of Adjustment.

Pursuant to N.J.S.A. 40:55D-25(c) the Planning Board shall exercise to the same extent and subject to the same restrictions, all the powers of the Board of Adjustment as provided by law and other provisions of this chapter.

§ 113-31 Establishment of the Planning Board.

A. A Planning Board is hereby established consisting of nine (9) members of the following four (4) classes:

(1) Class I: The Mayor or the Mayor's designee in the absence of the Mayor.

(2) Class II: One (1) of the officials of the municipality, other than a member of the Governing Body, to be appointed by the Mayor; provided that if there is an Environmental Commission, the member of the Environmental Commission, who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Planning Board Member.

(3) Class III: A member of the Governing Body.

(4) Class IV: Six (6) other citizens of the municipality to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, position or employment except that one (1) Class IV member may be a member of the Board of Education.

B. The term of the member composing Class I shall correspond with his official tenure. The term of the member composing Class II and Class III shall be for one (1) year or terminated at the completion of the term of office, whichever occurs first, except that a Class II or Class IV member who is also a member of the Environmental Commission shall be for a term of three (3) years or shall terminate upon the termination of membership on the Environmental Commission.

C. The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of such term shall be evenly distributed over the first four (4) years after their appointment and as determined by resolution of the Governing Body; provided, however, that no term of any member shall exceed four (4) years and further provided that nothing herein shall affect the term of any present member of the Planning Board, all of whom shall continue in office until the completion of the terms of four (4) years except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.

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

E. The Planning Board shall elect a chairman and vice chairman from the members of Class IV and select a secretary who may be either a member of the Planning Board or a municipal employee designated by it.

F. There shall be four (4) alternate members of the Planning Board whose terms shall be two (2) years. They shall be designated Alternate Number One, Alternate Number Two, Alternate Number Three, and Alternate Number Four at the time of appointment. Such alternate members shall perform their duties as required by law. Alternate members shall have the qualifications of Class IV members. The terms of alternate members shall be two (2) years, except that the terms of not more than two (2) alternate members shall expire in any one (1) year, provided that in no instance shall the term of any alternate member exceed two (2) years.

§ 113-32 Powers and Jurisdiction of the Planning Board.

A. The Planning Board shall follow the provisions of the MLUL and shall accordingly exercise its powers in regard to:

(1) The Master Plan.

(2) Subdivision control and site plan review.

(3) The Official Map.

(4) The Zoning Ordinance including conditional uses.

(5) Variances and certain building permits in conjunction with subdivision, site plan and conditional use approval.

(6) To the same extent, and subject to the same restrictions, all of the powers of the Board of Adjustment as provided in N.J.S.A. 40:55D-70 thru N.J.S.A. 40:55D-76 of the MLUL, except that Class I and Class III members shall not participate in the consideration of applications for development which involve relief pursuant to N.J.S.A. 40:55D-70D of the MLUL.

§ 113-33 Procedural Provisions

A. Appeals to the Board may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of this Land Development Chapter or Official Map. Such appeal shall be taken within twenty (20) days of filing a notice of appeal with the officer from whom the appeal is taken, specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken. (N.J.S.A. 40:55D-72)

B. A developer may file an application for development with the Planning Board for action under all of its powers without prior applications to an administrative officer.

C. Hearings.

(1) The Planning Board shall hold a hearing on each application for a request for site plan or subdivision approval, zoning variance, conditional use, appeal, interpretation or direction for the issuance of a permit.

(2) The Chairman presiding at the hearing (or such person as he may designate) shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, P.L. 1953, C. 38(N.J.S.A. 2A:67A-1 et seq.) shall apply.

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

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

D. Notice of applications (N.J.S.A. 40:55D-12)

(1) Application of requirements. Public notice of a hearing shall be given for the following:

(a) A request for a variance pursuant to § 113-32, conditional use approval pursuant to § 113-29, or the direction for issuance of a permit pursuant to § 113-32.

(b) A request for preliminary site plan approval involving one (1) or more of the aforesaid elements.

(c) Preliminary subdivision approval. (Note: requests for sketch plat classification and/or minor subdivision approval do not require notice under this section).

(2) Responsibilities of the Applicant.

(a) Notice of a hearing requiring public notice pursuant to Subsection D(1) above shall be given by the applicant as follows at least ten (10) days prior to the date of the hearing:

(i) By publication in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality.

(ii) To all owners of real property as shown on the current tax duplicate located within two hundred (200) feet in all directions of the property which is the subject of the hearing, which notice shall be given by serving a copy thereof on the property owner as shown on the current tax duplicate or his agent in charge of the property; or by mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate. It is not required that a return receipt be obtained. Notice is deemed complete upon mailing (N.J.S.A. 40:55D-14).

(iii) Notice to a partnership owner may be made by service upon any partner; notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.

(iv) To the Clerk of any adjoining municipality or municipalities and to the County Planning Board when the property involved is located within two hundred (200) feet of said adjoining municipality or municipalities, which notice shall be given by personal service or certified mail.

(v) To the County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the official county map or County Master Plan or adjoins other county land.

(vi) To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.

(vii) To the Director of the Division of State and Regional Planning in the Department of Community Affairs when the hearing involves as application for development of property which exceeds one hundred fifty (150) acres or five hundred (500) dwelling units, in which case the notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk pursuant to N.J.S.A. 40:55D-10b.

(b) Upon the written request of an applicant and the payment of a fee of ten ($10.00) dollars, the Borough Clerk shall make and certify a list from said current tax duplicates of names and addresses of owners within the Borough Avon-by-the-Sea to whom the applicant is required to give notice. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding. (Note: For the names and addresses of property owners in adjacent municipalities, when required, contact the respective clerks).

(3) Contents of notice. The notice shall state the date, time and place of the hearing and the nature of the matters to be considered, and an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Borough Tax Assessor's office, and the location and times at which any maps or documents for which approval is sought are available for inspection.

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

F. Meetings.

(1) Meetings of the Planning Board shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.

(2) Special meetings may be provided for at the call of the chairman or on the request of any two (2) Board members, which shall be held on notice to the Board's members and the public in accordance with all applicable legal requirements.

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

(4) All actions shall be taken by majority vote of a quorum except as otherwise required by a provision of N.J.S.A. 40:55D-1 et seq.

(5) All meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meeting Law, C. 231, Laws of New Jersey, 1975.

G. Records.

(1) Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Planning Board and of the persons appearing by attorney, the action taken by the Planning Board, the findings, if any, made by it and reasons therefore. The minutes shall thereafter be made available for public inspection during the normal business hours at the office of the Borough Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes.

(2) A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made by either stenographer, mechanical or electronic means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense.

H. No application for any relief available under Chapter 113 shall be accepted and processed unless the applicant is current with all municipal property taxes, water or sewer fees with respect to the property that is subject of the application.

With respect to all applications made to the Planning Board, the Secretary of the Planning Board shall check with the Municipal Tax Collector regarding the status of the property tax, water and sewer accounts for the subject property. If there is a delinquency, the Secretary shall notify the applicant informing the applicant of the amount and nature of the delinquency.

The applicant shall then have ten (10) days to pay all outstanding balances including principal, interest and any applicable fees. If full payment is made, the Secretary will process the application in accordance with the provisions of Chapter 113. If full payment is not received, the application shall be returned to the applicant with a notice that the application has been rejected for failure to comply with the terms of this section.

I. Time to Act on Applications. The Planning Board shall act on all development applications within the prescribed times that are provided for in the MLUL, unless an applicant has authorized an extension for decision of time.

§ 113-34 Appeal of "Use" Variance Approvals.

A. Any interested party may appeal to the Governing Body any final decision of the Planning Board approving an application for development pursuant to N.J.S.A. 40:55D-70d (Use Variance).

B. Such appeal shall be made within ten (10) days of the date of publication of such final decision pursuant to Section 113-35 of this chapter. The appeal to the Governing Body shall be made by serving the Borough Clerk, in person or by certified mail, with a notice of appeal specifying the grounds thereof and the name and address of the appellant and name and address of his attorney, if represented. Such appeal shall be decided by the Governing Body only upon the record established before the Planning Board.

C. Notice of the meeting to review the record below shall be given by the Governing Body by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to Section 113-32 of this chapter and to the Board at least ten (10) days prior to the date of the meeting. The parties may submit oral and written arguments on the record at such meeting, and the Governing Body shall provide for verbatim recording and transcripts of such meeting.

D. The Governing Body shall conclude a review of the record below not later than ninety-five (95) days from the date or receipt of the transcript of the hearing unless the appellant consents in writing to an extension of such period. The appellant shall arrange for a transcript for use by the Governing Body. Failure of the Governing Body to hold a hearing and conclude a review of the record below and to render a decision within such specified period without such written consent of the appellant shall constitute a decision affirming the action of the Board. (N.J.S.A. 40:55D-17)

E. The Governing Body may reverse, remand or affirm, wholly or in part, or may modify the final decision of the Planning Board. The affirmative vote or a majority of the full authorized membership of the Governing Body shall be necessary to reverse, remand or modify any final action to the Board.

§ 113-35 Notice of Decisions.

Any decision of the Planning Board when acting upon any application for development and any decision of the Governing Body when acting upon an appeal shall be given notice in the following manner:

A. A copy of the decision shall be mailed to the applicant or appellant or, if represented, then to his attorney without charge, and for a reasonable charge to any interested party who has requested it, not later than ten (10) days after the date of the decision.

B. A brief notice of the decision shall be published in the official newspaper of the municipality if there be one or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the Secretary of the Board and paid for by the applicant.

C. A copy of the decision and all submitted documents of record shall be filed with the Borough Clerk.