Borough of Bernardsville, NJ FEES AND ESCROW DEPOSITS

[1]

Editor's Note: Article 15, Fees and Escrow Deposits, includes Ordinance Nos. 581, 777, 859, 93-968 §§ 1, 2, 95-1012, 98-1135, 98-1149, 2000-1206.

In addition to paying the fees prescribed by § 15-1, applicants before the Planning Board or the Board of Adjustment shall deposit with the Borough the escrow deposits specified in § 15-5. The escrow deposit shall be applied to all costs associated with the required review of the application by the engineer, planner, attorney or other professionals employed by the Board.

The applicant will have the right to review any reports by the professionals and to cross-examine them if, and when, they testify before the Board.

Before an application requiring the deposit of escrow funds shall be deemed complete by the approving authority, the applicant shall post the required escrow amount with the Borough in the form of cash, certified check or money order. Additional escrow funds may be required when the escrow has been depleted to 20% of the original amount. The Borough shall promptly notify the appropriate Board when escrow funds have been so depleted. Professional consultants and experts shall inform the approving authority as to the additional anticipated costs. The approving authority will in turn notify the applicant as to the amount of additional escrow funds which must be posted. No action shall be taken on the application until adequate additional funds have been deposited by the applicant with the Borough Clerk.

All bills and vouchers submitted by retained professionals in connection with the processing of such applications shall specify the services performed and the time expended relative thereto. The bill shall also set forth the hourly billing rate. The hourly billing rate shall be in accordance with the amount set forth in the contract between the professional and the Borough or appropriate Board. All funds not expended shall be refunded to the applicant within 30 days after the approving authority has taken action on the application. The Borough shall also provide the applicant with an accounting of the escrow funds.

Whenever an amount of money in excess of $5,000 shall be deposited by an applicant with a municipality for professional services employed by the municipality to review applications for development, for municipal inspection fees in accordance with Subsection h. N.J.S.A. 40:55D-53 or to satisfy the guarantee requirements of Subsection a. N.J.S.A. 40:55D-53, the money, until repaid or applied to the purposes for which it is deposited, including the applicant's portion of the interest earned thereon, except as otherwise provided in this section, shall continue to be the property of the applicant and shall be held in trust by the Borough. Money deposited shall be held in escrow. The Borough shall deposit it in a banking institution or savings and loan association in this State insured by an agency of the federal government, or in any other fund or depository approved for such deposits by the State, in an account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. The Borough shall notify the applicant in writing of the name and address of the institution or depository in which the deposit is made and the amount of the deposit. The Borough shall not be required to refund an amount of interest paid on a deposit which does not exceed $100 for the year. If the amount of interest exceeds $100, that entire amount shall belong to the applicant and shall be refunded to him by the municipality annually or at the time the deposit is repaid or applied to the purposes for which it was deposited, as the case may be; except that the municipality 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.

The Borough chief financial officer shall make all of the payments to professionals for services rendered to the Borough or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of the MLUL. Such fees or charges shall be based upon a schedule established by resolution. The application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the Borough. The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants including normal and typical expenses incurred in processing applications and inspecting improvements. The municipality or approving authority shall not bill the applicant, or charge any escrow account or deposit authorized under Subsection p of this section, for any Borough clerical or administrative functions, overhead expenses, meeting room charges, or any other Borough costs and expenses except as provided for in this section, nor shall a Borough professional add any such charges to his bill. If the salary, staff support and overhead for a Borough professional are provided by the Borough, the charge shall not exceed 200% of the sum of the products resulting from multiplying (1) the hourly base salary, which shall be established annually by ordinance, of each of the professionals by (2) the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals the charge shall be at the same rate as all other work of the same nature by the professional for the Borough when fees are not reimbursed or otherwise imposed on applicants or developers.

If the Borough requires of the developer a deposit toward anticipated Borough expenses for these professional services, the deposit shall be placed in an escrow account pursuant to N.J.S.A. 40:55D-53.1. The amount of the deposit required shall be reasonable in regard to the scale and complexity of the development. The amount of the initial deposit required shall be established by ordinance. For review of applications for development proposing a subdivision, the amount of the deposit shall be calculated based on the number of proposed lots. For review of applications for development proposing a site plan, the amount of the deposit shall be based on one or more of the following: the area of the site to be developed, the square footage of buildings to be constructed, or an additional factor for circulation-intensive sites, such as those containing drive-through facilities. Deposits for inspection fees shall be established in accordance with Subsection h. of N.J.S.A. 40:55D-53.

Each payment charged to the deposit for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service, and for each date the services performed, the hours spent to one-quarter hour increments, the hourly rate and the expenses incurred. All professionals shall submit vouchers to the chief financial officer of the Borough on a monthly basis in accordance with schedules and procedures established by the chief financial officer. If the services are provided by a Borough employee, the Borough employee shall prepare and submit to the chief financial officer a statement containing the same information as required on a voucher, on a monthly basis. The professional shall send an informational copy of all vouchers or statements submitted to the chief financial officer of the Borough simultaneously to the applicant. The chief financial officer of the Borough shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis, if monthly charges are $1,000 or less, or on a monthly basis if monthly charges exceed $1,000. If an escrow account or deposit contains insufficient funds to enable the Borough or approving authority to perform required application reviews or improvement inspections, the chief financial officer of the Borough shall provide the applicant with a notice of the insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall within a reasonable time period post a deposit to the account in an amount to be agreed upon by the Borough or approving authority and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

The following close-out procedure shall apply to all deposits and escrow accounts established under the provisions of the MLUL and shall commence after the approving authority has granted final approval and signed the subdivision plat or site plan, in the case of application review escrows and deposits, or after the improvements have been approved as provided in 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 approving authority, and to the relevant Borough 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 30 days, and shall send a copy simultaneously 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 45 days of receipt of the final bill. Any balances remaining in the deposit or escrow account, including interest in accordance with N.J.S.A. 40:55D-53.1, shall be refunded to the developer along with the final accounting.

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 approving authority or upon review of compliance with conditions of approval, or review of requests for modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any State governmental agency and not under Borough jurisdiction except to the extent consultation with a State agency is necessary due to the effect of State approvals in the subdivision or site plan. Inspection fees 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.

If the Borough retains a different professional or consultant in the place of the professional originally responsible for development, application review, or inspection of improvements, the Borough or approving authority 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 approving authority shall not bill the applicant or charge the deposit or the escrow account for any such services.

An applicant shall notify in writing the Governing Body with copies to the chief financial officer, the approving authority and the professional whenever the applicant disputes the charges made by a professional for service rendered to the Borough in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the provisions of the MLUL. The Governing Body, or its designee, shall within a reasonable time period 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 under N.J.S.A. 52:27D-127 any charge to an escrow account or a deposit by any Borough professional or consultant, or the cost of the installation of improvements estimated by the Borough 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, approving authority, and any professional whose charge is the subject of the appeal. An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by Subsection c. of N.J.S.A. 40:55D-53.2, except that if the professional has not supplied the applicant with an informational copy of the voucher, then the applicant shall file his appeal within 60 days from receipt of the Borough statement of activity against the deposit or escrow account required by Subsection c. of section 13 of P.L. 1991, c.256 (C.40:55D-53.2). An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An applicant making use of this provision need not appeal each charge individually.

During the pendency of any appeal, the Borough or approving authority shall continue to process, hear, and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance 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 section. The chief financial officer pays charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment, the chief financial officer of the Borough shall reimburse the deposit or escrow account in the amount of any such disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment to a professional or consultant who is not an employee of the Borough, the professional or consultant shall reimburse the Borough in the amount of any such disallowed charge.

[Ord. No. 2001-1261 § 3; Ord. No. 10-1576; Ord. No. 2014-1648; Ord. No. 2019-1800]

The schedule of fees and escrow deposits referred to in §§ 15-1 and 15-2 is as follows:

Schedule of Fees and Escrow Deposits
Subdivisions	Fees	Escrows
Conceptual Subdivision without review by Board's Attorney, Engineer or Planner	0	0
Conceptual Subdivision with review by Board's Attorney or Consultant	$250	$1,000
Minor Subdivision or Re-Sub with no newly created variances	$500	$2,000
Minor Subdivision or Re-Sub with newly created variances	$500	$4,000
Preliminary Plat, Major Subdivision	$200/lot	$5,000 + $200/lot
Final Plat, Major Subdivision	$100/lot	$2,000 + $100/lot
Lot Line Adjustment	$250	$1,500

Site Plans	Fees	Escrows
Conceptual Site Plan without expert/legal review OR Site Plan Review/Waiver done at subcommittee meeting (i.e., doesn't require public meeting)	0	0
Conceptual Site Plan with expert/legal review	$250	$1,500
Minor Residential Site Plan including inhouse Professional Use	$500	$2,000
Apartment and Accessory Dwelling Unit applications
Preliminary Multi-Family Site Plan	$1,000 + $100/unit	$5,000 + $100/unit
Final Multi-Family Site Plan	$1,000 + $50/unit	$5,000 + $50/unit
Site Plan Review/Waiver Nonresidential, Facade changes without site improvements or building expansion (When there is a public hearing)	$250	$1,000 for those needing public meeting, and/or review by Board professionals ($0 if done at subcommittee meeting)
Minor Nonresidential Site Plan, including outside dining	$750	$2,500
Preliminary Major Nonresidential Site Plan	$500 - 1st 2,000 square feet of affected land area + $20/each additional 1,000 square feet affected land + $500-1st 1,000 square feet of structures + $20/each additional 1,000 square feet of affected structures	$5,000 + $200/1,000 new/altered square feet GFA
Final Major Nonresidential Site Plan	$100 - 1st 2,000 square feet land + $10/each 1,000 square feet of affected land + $100-1st 1,000 square feet GFA + $10/each additional 1,000 square feet GFA affected	25% of Prelim.
[Areas to be rounded off to nearest 1,000 Square Feet]

The fees, but not the escrow, are waived for minor non-residential site plans, preliminary major non-residential site plans and final major non- residential site plans that involve the expansion of outdoor dining into areas of the property not shown as outdoor dining areas on the restaurant's or other eating establishment's current site plan. [Added 6-28-2021 by Ord. No. 2021-1885

Variances	Fees	Escrows
Use Variances [N.J.S.A. 40:55D-70d]	$1,000	$2,000
Use variances filed in conjunction with application for a Certificate of Nonconformity [N.J.S.A. 40:55D-68]	$0	$2,000
Applications that include only Rear Yard Setback Variances for Decks of 300 Square Feet or Less	$500	$700
All Other Bulk Variances [N.J.S.A. 40:55D-70c]	$500	$1,500
Certificates of Nonconformity N.J.S.A. 40:55D-68
Applications to Administrative Officer	$200	$300
Applications to Board of Adjustment	$200	$800

Miscellaneous	Fees	Escrows
Site Plan for Flood Plain/Riparian Yard Encroachment when not part of a Subdivision or Site Plan	$1,000	$1,500
Amended Approvals - Subdivision or Site Plan	25% of initial fee	Use initial unless returned, then 25%
Appeals filed pursuant to N.J.S.A. 40:55D-70a	$200	$800
Interpretations filed pursuant to N.J.S.A. 40:55D-70b	$200	$800
Appeals filed pursuant to N.J.S.A. 40:55D-34	$1,000	$1,500
Appeals filed pursuant to N.J.S.A. 40:55D-36	$1,000	$1,500

Note No. 1: The Planning Board encourages prospective applicants to appear at its work meetings for informal discussions of proposals. No such discussion shall be considered a concept plan until the Board determines that review by professionals is required. At that point, the applicant must pay the fee and make the deposit appropriate for a concept application or a formal application, at the election of the applicant.

Note No. 2: Conditional Use Site Plans shall be charged per normal Minor or Major Nonresidential Site Plans with the exception of Professional Use Site Plans and in-house accessory apartment site plans which shall be treated as Minor Residential Site Plans.