Township of Montague, NJ Chapter 10 Land Use Procedures

[HISTORY: Adopted by the Township Committee of the Township of Montague 8-10-76 as Ord. No. 76-12; amended 9-14-76 by Ord. No. 76-13; 3-14-78 by Ord. No. 78-2; 5-13-80 by Ord. No. 80-9; 4-13-82 by Ord. No. 82-5; 10-12-82 by Ord. No. 82-13; 9-24-85 by Ord. No. 85-7; 4-28-87 by Ord. No. 87-4; 11-10-87 by Ord. No. 87-18; 4-12-88 by Ord. No. 88-3; 5-9-89 by Ord. No. 89-5; 11-28-89 by Ord. No. 89-19; 3-25-97 by Ord. No. 97-2; 8-12-98 by Ord. No. 98-9; 6-13-00 by Ord. No. 2000-13; amended in its entirety 12-12-00 by Ord. No. 2000-018. Further amendments noted where applicable.]

Editor's Note: This chapter has been enacted in conformance with the provisions of the Municipal Land Use Law (P.L. 1975, c. 291) to revise administrative procedures for land use development (including subdivision of land and zoning) in the Township of Montague. Where conflicts or inconsistencies exist between this chapter and other chapters or sections of the Code, Section 10-41 of this chapter has provided for the repeal of such inconsistencies. Action will be taken in the future by the Township Committee to amend other sections of the Code in conformity with this chapter and the Land Use Law.

§ 10-1 Establishment of Land Use Board.

A. Pursuant to N.J.S.A. 40:55D-25(c), there is hereby created and established in the Township of Montague a Land Use Board, entitled the Montague Township Land Use Board to act as both the Planning Board and the Board of Adjustment. The Land Use Board will assume all statutory duties currently handled by the Montague Township Planning Board and the Montague Township Zoning Board of Adjustment.

B. The Montague Township Planning Board previously established under the laws of the Township of Montague and the laws of the State of New Jersey is hereby abolished in the manner and within the time frame set forth in this chapter.

C. The Montague Township Zoning Board of Adjustment previously established under the laws of the Township of Montague and the laws of the State of New Jersey be and is hereby abolished in a manner and within a time frame as more particularly set forth in this chapter.

D. Upon passage of this chapter, neither the Montague Township Planning Board nor the Montague Township Board of Adjustment shall accept any new applications. They shall, however, each continue consideration of pending applications that have been deemed complete by those Boards and for which public hearings have been set and publicly noticed. In those situations, each Board shall have 90 days in which to hold hearings and to render a decision on the particular application. In the event that either Board anticipates that an application cannot be finally determined by the Board within the 90 day period, the application should be immediately transferred to the Land Use Board for immediate resumption of the application process before the Land Use Board. Scheduling preferences shall be given to such applications by the Land Use Board.

§ 10-2 Membership.

A. The Montague Township Land Use Board will consist of nine members and two alternate members, as appointed by the Mayor and Township Committee. The Land Use Board shall exercise, to the same extent and subject to the same restrictions, all the powers given to Zoning Boards of Adjustment and Planning Boards by the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq.

B. The membership of said Land Use Board shall be in accordance with N.J.S.A. 40:55D-23. The nine members of the Land Use Board shall consist of the following four classes:

(1) Class I - The Mayor or the Mayor's designee in the absence of the Mayor;

(2) Class II - one of the officials of the municipality, other than a member of the Governing Body, to be appointed by the Mayor;

(3) Class III - one member of the Governing Body to be appointed by it; and

(4) Class IV - five other citizens of the municipality to be appointed by the Mayor upon recommendation of a majority of the Governing Body and one other citizen of the municipality to be appointed by the Mayor.

C. There may also be not more than two alternate members appointed to the Land Use Board in the same manner as Class IV members who shall be designated by the Chairman of the Land Use Board as Alternate No. 1 and Alternate No. 2.

D. Alternate members may participate in all matters, but may not vote except in the absence or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice be made as to which alternate member is to vote, Alternate No. 1 shall vote.

E. The members of Class IV shall hold no other municipal office. A member of the Environmental Commission who is also a member of the Land Use Board as required by N.J.S.A. 40:56A-1, shall be a Class IV Land Use Board member.

§ 10-3 Term of office.

A. The term of the member composing Class I shall correspond with his official tenure. The terms of the members comprising Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first. The term of the Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his term of office as a member of the Environmental Commission, whichever occurs first.

B. 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 terms shall be distributed evenly over the first four years after their appointment, as determined by resolution of the Governing Body; provided however, that no term of any member shall exceed four years. Thereafter, all Class IV members shall be appointed for terms of four years except as otherwise hereinabove provided. All terms shall run from January 1 of the year in which the appointment is made.

C. The terms of alternate members shall be for two years, except that, of the alternate first appointed, one shall be appointed for a one year term and one shall be appointed for a two year term, said terms to run from January 1 of the year in which the appointment is made. Thereafter, all appointments shall be made for a term of two years.

§ 10-4 Vacancies.

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

§ 10-5 Organization.

The Land Use 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 Land Use Board or a municipal employee designated by it.

§ 10-6 Land Use Board Attorney.

There is hereby created the office of Land Use Board Attorney. The Land Use Board may annually appoint, fix the compensation of, or agree upon the rate of compensation of the Land Use Board Attorney, who shall be an attorney other than the Municipal Attorney.

§ 10-7 Experts and staff.

The Land Use Board may also employ or contract for the services of experts and other staff and services as it may deem necessary. The Board shall not however exceed, exclusive of gifts or grants, the amount appropriated by the Governing Body for its use.

§ 10-8 Land Use Administrator/Land Use Board Secretary.

There is created hereby the position of Land Use Administrator/Land Use Board Secretary who shall be appointed by the Land Use Board, after consultation with the acceptance by the Township Committee. The Land Use Administrator/Secretary shall have general knowledge of the workings of the Land Use Board and the Zoning Officer, and shall serve as Administrative Assistant to the Land Use Board and Zoning Officer during such weekly hours and for such compensation as set by the Township Committee

§ 10-9 General powers and duties of Land Use Board.

The Land Use Board is authorized to adopt by-laws governing its procedural operation. It shall also have the following powers and duties:

A. To make and adopt and from time to time amend a Master Plan for the physical development of the township including any areas outside its boundaries, which in the Board's judgment bear essential relation to the planning of the township, in accordance with the provisions of N.J.S.A. 40:55D-28.

B. To administer the provisions of the Land Subdivision Ordinance and Site Plan Review Ordinance of the Township in accordance with the provisions of said ordinances and the Municipal Land Use Law of 1975, N.J.S.A. 40:55D-1 et seq.[1]

[1] Editor's Note: See Ch. 60, Subdivision of Land, Ch. 76, Zoning and Ch. 55, Site Plan Review.

C. To participate in the preparation and review of programs or plans required by state or federal law or regulations in accordance with N.J.S.A. 40:55D-25.

D. To assemble data on a continuing basis as part of a continuous planning process.

E. To annually prepare a program of municipal capital improvement projects projected over a term of six years, and amendments thereto, and recommend same to the Governing Body.

F. To consider and make report to the Governing Body, within 35 days after referral as to any proposed development regulation submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26(a); and also to pass upon other matters specifically referred to the Land Use Board by the Township Committee pursuant to the provisions of N.J.S.A. 40:55D-26(b).

G. When reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment:

(1) Variances pursuant to N.J.S.A. 40:55D-70c from lot area, lot dimensional setback and yard requirements provided that such relief from lot area requirements shall not be granted for more than one lot.

(2) Direction pursuant to N.J.S.A. 40:55D-34 for issuance of permit for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32.

(3) Direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit for a building or structure not related to a street.

Whenever relief is requested pursuant to this section, notice of a hearing on the application for development shall include reference to the request for a variance or direction for issuance of a permit as the case may be. The developer may elect to submit a separate application requesting approval of the variance or direction of the issuance of a permit, and a subsequent application for any required approval for a subdivision, site plan, or conditional use. The separate approval of the variance or the direction of the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Land Use Board. The variance and subsequent approval shall not be granted unless such approval can be granted without substantial impairment of the intent or purpose of the zone plan and zoning ordinance.

H. To perform such other advisory duties as are assigned to it by ordinance or resolution of the Governing Body for the aid and assistance of the Governing Body or other agencies or officers.

In addition to the powers stated above, the Land Use Board shall exercise to the same extent, and subject to the same restrictions, all powers of a Zoning Board of Adjustment as said powers are listed and provided under the Municipal Land Use Law.

§ 10-10 Duties of Land Use Administrator/Land Use Board Secretary.

The duties of the Land Use Administrator/Land Use Board Secretary shall include the following:

A. Receive all applications for development, determine whether such applications are complete as set forth by the township ordinance, notify applicants whether submissions are complete or incomplete, solely for the purpose of placing the application on the calendar, within the time provided by law;

B. Establish the calendar of cases for the meetings of the Land Use Board;

C. Notify the applicants of the dates upon which matters will be heard in sufficient time so that notices can be given within the time required by N.J.S.A. 40:55D-12;

D. Attend all Land Use Board meetings and provide for the making of a verbatim record of all proceedings before each Land Use Board;

E. Be responsible for giving notice by advertisement or otherwise, in accordance with statutory authority, of all public notices required to be given by the Board pursuant to the Municipal Land Use Law or by the Open Public Meetings Act;

F. Maintain and have general charge and control of all records of the Land Use Board and Zoning Officer; take minutes of meetings of the Land Use Board and prepare same as required by the Municipal Land Use Law; and receive and present the correspondence of the Board and Zoning Officer;

G. Keep a record of all complaints received and all actions taken to abate any violations of the township zoning ordinances and immediately notify the proper board or official of said complaint. Prepare such correspondence or documents needed by the Zoning Officer to fulfill the Zoning Officer's duties under these ordinances;

H. Provide general administrative support to the Zoning Officer and Land Use Board.

§ 10-11 Time limits for approval.

A. Minor subdivisions and site plans. Minor subdivision approvals shall be granted or denied within 45 days of the date of certification of submission of a complete application to the Land Use Board or within such further time as may be consented to by the applicant. Approval of a minor subdivision shall expire 190 days from the date of Land Use Board approval unless within such period a plat in conformity with such approval and the provisions of the Map Filing Law, or a deed clearly describing the approved minor subdivision, is filed by the developer with the County Recording Officer, the Township Engineer and the Township Tax Assessor. Any such plat or deed must be signed by the Chairman and the Secretary to the Land Use Board before it will be accepted for filing by the County Recording Officer. Minor site plan approval shall be deemed to be final approval of the site plan by the Board, provided that the Board or a site plan committee of the Board appointed by the Chairman finds that the application conforms to the definition of minor site plan, and further provided that the Board or said subcommittee may condition such approval on terms ensuring the provision of improvements pursuant to N.J.S.A. 40:55D-38, N.J.S.A. 40:55D-39, N.J.S.A. 40:55D-41, and N.J.S.A. 40:55D-55. Any approvals given pursuant to this section shall be conditioned upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time period.

B. Preliminary approval of site plans and subdivisions.

(1) Upon submission of a complete application for a site plan which involves 10 acres of land or less and 10 dwelling units or less, or for a subdivision of 10 or fewer lots, the Land Use Board shall grant or deny preliminary approval within 45 days of the certification of completeness of such submission or within such further time as may be consented to by the developer.

(2) Upon submission of a complete application for a site plan which involves more than 10 acres or more than 10 dwelling units, or for a subdivision of more than 10 lots, the Land Use Board shall grant or deny preliminary approval within 95 days of the date of certification of completeness of such submission or within such further time as may be consented to by the developer. Otherwise, the Land Use Board shall be deemed to have granted preliminary approval for the subdivision or site plan.

C. Ancillary powers. Whenever the Land Use Board is called upon to exercise its ancillary powers before granting a variance as set forth in subsection 10-9G of this chapter, the Land Use Board shall grant or deny approval of the application within 95 days after submission by the developer of a complete application or within such further time as may be consented to by the applicant. Failure of the Land Use Board to act within the period prescribed shall constitute approval of the application and a certificate of the administrative officer as to the failure of the Land Use Board to act shall be issued on request of the applicant.

D. Final approval. Application for final subdivision or site plan approval shall be granted or denied within 45 days of certification of completeness of the application or within such further time as may be consented to by the applicant. Final approval of a major subdivision shall expire 95 days from the date of signing of the plat, unless within such period the plat shall have been duly filed by the developer with the County Recording Officer. The Land Use Board may, for good cause shown, extend the period for recording for an additional period not to exceed 190 days from the date of signing of the plat.

§ 10-12 Procedure for filing applications.

[Amended 2-10-04 by Ord. No. 2004-02]

A. Certification of completeness of application. Applications for development within the jurisdiction of the Land Use Board shall be reviewed for completeness in accordance with the provisions of Section 10-33 of this chapter.

B. Procedure for filing application.

(1) Applications for development within the jurisdiction of the Land Use Board pursuant to the provisions of N.J.S.A. 40:55D-1 et seq. shall be filed with the Land Use Administrator/Secretary. Applicant shall file at least 21 days before the date of the monthly meeting of the Board:

(a) 14 copies of any conceptual plan to be reviewed by the Board, for which no charge shall be made;

(b) 14 copies of applications for minor subdivision approval;

(c) 14 copies of applications for major subdivision approval; and

(d) 14 copies of an application for either major or minor site plan review, conditional use approval, or planned development.

(2) The applicant shall also obtain all necessary forms from the Land Use Administrator/Secretary. The Land Use Administrator/Secretary shall inform the applicant of the steps to be taken to initiate applications and of the regular meeting dates of the Land Use Board.

(3) At the time of filing the application, the applicant shall also file 14 copies of all plot plans or site plans and shall also file all other papers required by virtue of any provisions of this chapter or the land use subdivision, site plan or zoning ordinances of the township or required by any rule or regulation of the Land Use Board. When the application has been certified to be complete, the applicant shall be notified of the date set for hearing and shall give all notices as required by ordinance or statute.

§ 10-13 Citizens' Advisory Committee.

The Mayor may appoint one or more persons as a Citizens' Advisory Committee to assist or collaborate with the Land Use Board in its duties, but such person or persons shall have no power to vote or take other action required of the Board. Such person or persons shall serve at the pleasure of the Mayor.

§ 10-14 Submission of application to Environmental Commission.

Whenever the Environmental Commission has prepared and submitted to the Land Use Board an index of the natural resources of the municipality, the Land Use Board shall make available to the Environmental Commission an informational copy of every application for development to the Land Use Board. Failure of the Land Use Board to make such informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.

§ 10-15 Rules and regulations.

The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply.

§ 10-16 through § 10-18. (Reserved)

§ 10-19 Appeal and application procedures.

A. Appeals to the Land Use Board may be taken by any person aggrieved, or by any officer, department, board or bureau of the township affected by any decision of the Administrative Officer. Each appeal shall be taken within the 20 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal was taken, together with four copies of such notice with the Land Use Administrator/Secretary. Such notice of appeal shall specify the grounds for the appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

B. Applications addressed to the original jurisdiction of the Land Use Board without prior application to an administrative officer shall be filed with the Land Use Administrator/Secretary. Four copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps, or other papers required by virtue of any provision of this chapter or any rule of the Land Use Board. The applicant shall obtain all the necessary forms from the Land Use Administrator/ Secretary. The Land Use Administrator/Secretary shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.

C. An appeal stays all proceedings in furtherance of the action in respect of which the decision appealed from was made, unless the officer from whom the appeal is taken certifies to the Land Use Board, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Land Use Board or by the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.

§ 10-20 Power of Board to reverse or modify decisions.

In exercising the above-mentioned power, the Land Use Board may, in conformity with the provisions of P.L. 1975 c. 291, or amendments thereto or subsequent statutes applying reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and make such other requirement, decision or determination as ought to be made, and to that end have all the powers of the administrative officer from whom the appeal was taken.

§ 10-21 Expiration of variance.

Any variance from the terms of this chapter hereafter granted by the Land Use Board permitting the erection or alteration of any structure or structures, or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance, or unless such permitted use has actually been commenced, within nine months from the date of entry of the judgment or determination of the Land Use Board, except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Land Use Board to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.

§ 10-22 Powers granted by law.

The Land Use Board shall have such powers as are granted by law to:

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 Chapter.

B. Hear and decide requests for interpretation of the map or Zoning Chapter, or for decisions upon other special questions upon which such Board is authorized to pass by provisions in the Zoning Chapter.

C. Variances.

(1) Where: (a) By reason of exceptional narrowness, shallowness or shape of a specific piece of property; (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 the Zoning Chapter 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 the 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 such regulations of the Zoning Chapter, provided, however, that no variance from those departures enumerated in N.J.S.A. 40:55D-70(d) shall be granted under this subsection; and provided further that the proposed development does not require approval by the Land Use Board of a subdivision, site plan or conditional use in conjunction with which the Land Use Board has power to review a request for a variance pursuant to N.J.S.A. 40:55D-60(a) of the Municipal Land Use Law.

D. In particular cases and for special reasons; grant a variance to allow a departure from regulations set forth in the Zoning Chapter 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 undersized lot or lots resulting from minor subdivision, in which event applications would be made pursuant to Subsection C above. A variance under this section shall be granted only by affirmative votes of at least five members of the Board.

§ 10-23 Additional powers.

A. The Land Use Board shall, in addition to the powers specified in Section 10-22 of this chapter, have power given by law to:

(1) Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved on the official map.

(2) Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.

B. The Land Use Board shall have the power to grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37 et seq., or conditional use approval pursuant to N.J.S.A. 40:55D-67, whenever the proposed development requires approval by the Board of a variance pursuant to Subsection d of Section 57 of the Municipal Land Use Law (N.J.S.A. 40:55D-70). The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the Land Use Board. No such subsequent approvals shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and Zoning Ordinance. The number of votes of the Land Use Board required to grant any such subsequent approvals shall be as otherwise provided in this Act for the approval in question, and the special vote pursuant to the aforesaid Subsection d of Section 57 (N.J.S.A. 40:55D-70d) shall not be required.

§ 10-24 Time limit for decision.

A. Land Use Board shall render its decision not later than 120 days after the date:

(1) An appeal is taken from the decision of an Administrative Officer, or

(2) The date of certification of completeness of an application for development to the Board. The Board or administrative officer authorized by the Board to review and certify applications shall certify the completeness of any application within 45 days from the date the application is filed with the Township Clerk, or otherwise the application shall be deemed to be complete and shall immediately be so certified.

B. Failure of the Board to render a decision within such period of 120 days or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.

C. In the event that the developer elects to submit separate consecutive applications for a use variance and site plan review respectively, the 120-day provision shall apply to the application for approval of the variance, but the period for granting or denying any subsequent approval shall be otherwise provided in this chapter.

D. If an application for development is found incomplete, the developer shall be notified, in writing, of the deficiencies therein by the Board, or the Board's designee for the determination of completeness, within 45 days of the submission of such application or it shall be deemed properly submitted. When it has been determined by the Board, or the Board's designee for the determination of completeness, that an application meets all requirements specified in the chapter and rules and regulations of the Board, the Land Use Administrator/ Secretary shall immediately issue a certificate to the developer that the application is complete, and the application shall be deemed to be complete as of the day it was so certified, for the purposes of the commencement of the time periods for actions by the Board.

E. The date of certification of completeness of an application for development to the Land Use Board shall be determined in accordance with Section 10-32 of this chapter.

§ 10-25 Conflicts of interest.

No member of the Land Use 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.

§ 10-26 Meetings.

A. Meetings of the Land Use Board/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.

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

C. No action shall be taken at any meeting without a quorum being present.

D. All actions shall be taken by a majority vote of the members present at the meeting, except as otherwise required by any provision of N.J.S.A. 40:55D-1 et seq.

E. All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Law, Chapter 231, Laws of New Jersey, 1975. An executive session for the purpose of discussing and studying any matters to come before either Board shall not be deemed a regular or special meeting in accordance with the provisions of N.J.S.A. 40:55D-9.

§ 10-27 Minutes of meetings.

Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney; the action taken by the Board, and the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Municipal Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceeding concerning the subject matter of such minutes. Such interested party may be charged a fee for reproduction of the minutes for his use as provided for in the rules of the Board.

§ 10-28 Fee schedule.

[Amended 10-9-01 by Ord. No. 2001-19]

The Land Use Board shall charge and receive application fees, escrow deposits for professional services, and certain miscellaneous fees as set forth in Schedule A of Chapter 10 entitled "Fee Schedule, Land Use Board".[1]

[1] Editor's Note: Schedule A, referred to herein, is included as an attachment to this chapter.

§ 10-29 Special meeting fees.

All special meetings of the Land Use Board, scheduled at the request of an applicant, shall be scheduled at the convenience of the Board. The fee shall be $300 per meeting, plus the estimated cost of any professional staff required for the meeting, such as engineer, attorney and/or planner. The application for the special meeting shall be in writing, and must be received a minimum of 14 days prior to the requested special meeting date. The Chairman shall fix the estimated cost of any professional staff expense and immediately notify the applicant, who shall deposit same with the Land Use Administrator/Secretary of the Land Use Board. All such estimated fees shall be deposited in a trust account and disbursed to pay such fees and expenses as may have been incurred on behalf of the township in connection with such hearing. If such costs exceed the amount of the fees deposited, the applicant shall deposit the additional funds required. In the event that there is an unused portion, it shall be returned to the applicant. The Land Use Board shall designate, by resolution, the officer who is to be responsible for the trust account provided for herein. No portion of the fee of $300 shall be returned.

§ 10-30 Inspection fees; escrow deposits.

A. Inspection fees. Inspection fees attributable to the services of the Township Engineer within the contemplation of paragraph h of N.J.S.A. 40:55D-53, shall be paid pursuant to, and in accordance with that section. The township may require a deposit pursuant to, and subject to the limitations of paragraph h of N.J.S.A. 40:55D-53. Inspection fees attributable to the services of the Board Engineer for inspection of improvements within the contemplation of N.J.S.A. 40:55D-53.2 shall be paid pursuant to and in accordance with Subsection C of this section.

B. Deposits; escrows; interest. Whenever an amount of money in excess of $5,000 shall be deposited by the applicant with the township for professional services employed by the township to review applications for development, for municipal inspection fees in accordance with subsection h of N.J.S.A. 40:55D-53 or to satisfy the guarantee requirements of subsection a of 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 or other land use chapter, shall continue to be the property of the applicant and shall be held in trust by the township. Money so deposited shall be held in escrow. The township 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 township 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 township 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 township 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 township may retain for administrative expenses a sum equivalent to no more than thirty-three and one-third percent (33 1/3%) of the entire amount which shall be in lieu of all other administrative and custodial expenses.

C. Escrow payments for professional services.

(1) The Chief Financial Officer of the township shall make all of the payments to professionals for services rendered to the township 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 land use chapters. Such fees or charges shall be as provided in Schedule A.[1] 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 township. 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 township or approving authority shall not bill the applicant, or charge any escrow account or deposit authorized under Subsection B. of this section, for any municipal clerical or administrative functions, overhead expenses, meeting room charges, or any other municipal costs and expenses except as provided for in this section, nor shall a township professional add any such charges to his bill. If the salary, staff support and overhead for a township professional are provided by the township, 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 any professionals, the charges shall be at the same rate as all other work of the same nature by the professional for the township when fees are not reimbursed or otherwise imposed on applicants or developments.

[1] Editor's Note: Schedule A is included as an attachment to this chapter.

(2) The township requires of the developer a deposit toward anticipated municipal 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 as provided in Schedule A.[2] 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 are established in accordance with Subsection A.

[2] Editor's Note: Schedule A is included as an attachment to this chapter.

(3) 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 on a monthly basis in accordance with schedules and procedures established by the Chief Financial Officer. If the services are provided by a township employee, the 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 information copy of all vouchers or statements submitted to the Chief Financial Officer simultaneously to the applicant. The Chief Financial Officer shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements, and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis, if monthly charges are $1,000 or less, or on a monthly basis if monthly charges exceed $1,000 If an escrow account or deposit contains insufficient funds to enable the township or approving authority to perform required application reviews or improvement inspections, the Chief Financial Officer shall provide the applicant with a notice of the insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall within a reasonable time period, post a deposit to the account in an amount to be agreed upon by the township 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.

(4) The following close-out procedure shall apply to all deposits and escrow accounts and shall commence after the approving authority has granted final approval and signed the subdivision plan 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:

(a) The applicant shall send written notice by certified mail to the Chief Financial Officer and the approving authority, and to the relevant township professionals, that the application or improvements, as the case may be, are completed.

(b) 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.

(c) 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.

(d) 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.

(5) 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 government agency and not under municipal 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.

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

§ 10-31 Hearings.

A. Rules. The Land Use Board/Planning Board may make rules governing the conduct of hearings before such bodies which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.

B. Oaths. The officer 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. 1938 (N.J.S.A. 2A:67A-1 et seq.) shall apply.

C. Testimony. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer 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.

D. Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.

E. Records. Each Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof, on request, to any interested party at his expense.

F. Vote by absent members. A member of the Board who is absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all the hearings from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.

§ 10-32 Notice requirements for hearings.

Whenever a hearing is required on an application for development pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall give notice thereof as follows:

A. Public notice shall be given by publication in the official newspaper of the municipality at least 10 days prior to the date of the hearing.

B. Adjoining property owners.

(1) Notice shall be given to the owners of all real property located in this state as shown on the current tax duplicate or duplicates located within 200 feet in all directions of the property which is the subject of such hearing and whether located within or without the township. Such notice shall be given by:

(a) Serving a copy thereof on the owners as shown on the current tax duplicates, or his agent in charge of the property; or

(b) Mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate or duplicates.

(2) The above requirements shall be deemed satisfied where condominiums or horizontal property regimes are within 200 feet of applicant's property by making service in the following manner:

(a) If the applicant's property abuts a condominium and the owner of any unit is within 200 feet of the applicant's property and said unit has a unit above or below it, by giving notice to the condominium association.

(b) If the applicant's property abuts a horizontal property regime and an apartment of the co-owner is within 200 feet of the applicant's property and such apartment has an apartment above or below it by giving notice to the horizontal property regime.

(c) If the applicant is the owner of a condominium unit or co-owner of an apartment, notice shall be given to all other unit owners or apartment co-owners within 200 feet of the unit or apartment owner or co-owned by the applicant.

(3) A return receipt is not required. Notice to a partnership owner may be made 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.

C. Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality, which notice shall be in addition to the notice required to be given pursuant to Subsection B of this section to the owners of lands in such adjoining municipality, which lands are located within 200 feet of the subject premises.

D. Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the official county map or on the County Master Plan adjoining other county land or situate within 200 feet of a municipal boundary.

E. Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.

F. Notice shall be given by personal service or certified mail to the Director of the Division of State and Regional Planning in the Department of Community Affairs of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk pursuant to Subsection b of Section 6 of Chapter 291 Laws of New Jersey 1975.

G. All notices hereinabove specified in this section shall be given at least 10 days prior to the date fixed for hearing and the applicant shall file an affidavit of proof of service with the Board holding the hearing on the application for development.

H. Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.

I. Form of notice. All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing; the nature of the matters to be considered; 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 Municipal Tax Assessor's office; and the location and times at which any maps and documents for which approval is sought are available as required by law.

J. Notice pursuant to Subsections C, D, E, and F of this section shall not be required unless public notice pursuant to Subsection A and Subsection B of this section is required. Notice under Subsections A and B is not required for conventional site plan review, minor subdivision approval or final approval pursuant to N.J.S.A. 40:55D-50.

§ 10-33 List of property owners.

Pursuant to the provisions of N.J.S.A. 40:55D-12c, the Tax Assessor of the Township of Montague shall, within seven days after receipt of a request therefor and upon receipt of payment of the maximum fees provided for in said section of the statute, make and certify a list from the current tax duplicate of names and addresses of owners to whom the applicant is required to give notice pursuant to Subsection 10-32B of this chapter.

§ 10-34 Complete application: certification of completeness; decisions on applications.

A.

[Amended 2-22-05 by Ord. No. 2005-2] The checklist of requirements for applications for development is as follows:

(1) Schedule A — Application checklist, Montague Township, Sussex County, New Jersey.

The checklist referred to above is on file and available for public inspection at the office of the Municipal Clerk.

All applications must meet the requirements of the specific application for a development checklist. If both preliminary and final approval of an application for development are being applied for at the same time, the requirements applicable to preliminary and final checklist items must be met. The applicant may request a waiver from any of these provisions; if a waiver is requested, however, the applicant must state in narrative form the reason applicant feels entitled to such waiver.

B. An application for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency when so certified by the municipal agency, committee or designee. In the event that the agency, committee or designee does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon the expiration of the 45 day period for the purposes of commencing the applicable time period, unless (1) the application lacks information indicated on a checklist hereinafter specified, a copy of which shall have been provided to the applicant, and (2) the municipal agency or its authorized committee or designee has notified the applicant in writing within 45 days of submission of the application. The applicant may request that one or more of the submissions be waived, in which event the agency shall grant or deny the request within 45 days. Nothing herein shall be construed as diminishing the applicant's obligation to prove in the application process that he is entitled to approval of the application. The municipal agency may subsequently require correction of any information found to be in error and submission of additional information not specified in the ordinance or any revisions in the accompanying documents as are reasonably necessary to make an informed decision as to whether the requirements necessary for approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such additional information or any revisions in the accompanying documents so required by the agency.

C. Decisions.

(1) The municipal agency shall include findings of fact and conclusions based thereon upon each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through:

(a) A resolution adopted at a meeting held within the time period provided in the Act for action by the municipal agency on the application for development, or

(b) A memorializing resolution adopted at a meeting held no later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purpose of the mailings, filings and publications required under N.J.S.A. 40:55D-10. If the municipal agency fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing within a stated time and the cost of the application, including attorney's fees, shall be assessed against the municipality.

(2) A copy of the decision shall be mailed by the Board within 10 days of the date of decision to the applicant, or if represented, then to his attorney, without separate charge. A copy of the decision shall also be mailed to all persons who have requested it and who have paid the fee prescribed by the Board for such service. A copy of the decision shall also be filed in the office of the Township Clerk, who shall make a copy of the filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the township.

§ 10-35 Publication of decision.

A brief notice of every final decision shall be published in the official newspaper of the municipality. Such publication shall be arranged by the Land Use Administrator/Secretary, as the case may be, without separate charge to the applicant. Said notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision.

§ 10-36 Payment of taxes.

Pursuant to the provisions of N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-65, every application for development submitted to the Land Use Board/Planning Board shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of such application, as well as before final approval is granted; or if it is shown that taxes or assessments are delinquent on said property, any approvals or other relief granted by the Board shall be conditioned upon either the prompt payment of such taxes or assessments or the making of adequate provision for the payment thereof in such manner that the municipality will be adequately protected.

§ 10-37 Disclosure of ownership by corporation or partnership.

A. A corporation or partnership applying to a municipal agency for permission to subdivide a parcel of land into six or more lots, or applying for a variance to construct a multiple dwelling of 25 or more family units, or for approval of a site to be used for commercial purposes, shall list the names and addresses of all stockholders or individual partners owning at least 10% of its stock of any class, or at least 10% of the interest in the partnership, as the case may be.

B. If a corporation or partnership owns 10% or more of a stock of a corporation or 10% or greater interest in a partnership subject to disclosure pursuant to Subsection A of this section, that corporation or partnership shall list the names and addresses of its stockholders holding 10% or more of its stock, or of 10% or greater interest in the partnership, as the case may be, and this requirement shall be followed by every corporate stockholder or partner in a partnership until the names and addresses of the noncorporate stockholders and individual partners exceeding the 10% ownership criterion have been listed.

§ 10-38 Conditional approvals.

A. Conditions precedent. Whenever any application for development is approved subject to specified conditions intended to be fulfilled before the approval becomes effective, said conditional approval shall lapse and become null and void unless all specified conditions are fulfilled within 190 days of the date of conditional approval.

B. The fulfillment of all conditions precedent shall be reported in writing to the municipal agency, which may cause such reports to be verified in an appropriate manner. Only upon fulfillment of all conditions shall any subdivision map or site plan be signed or any required building permit, occupancy permit or zoning permit be issued.

C. Conditions subsequent. Whenever any application for development is approved subject to conditions, which by their terms are incapable of being fulfilled, or are not required to be fulfilled prior to the final approval of the application, the performance of which are not guaranteed by bonds or securities of any type, failure to fulfill any such condition within six months from the date of the final approval of the application for development shall be grounds for the issuance of a stop work order by the Enforcing Official and the withholding of any zoning permit, certificate of occupancy or any approval until such condition or conditions are fulfilled.

D. Nothing herein contained shall be construed as preventing the municipal agency from specifying a longer period of time within which any specific condition must be fulfilled, or from granting, upon an ex parte application, an extension of time for fulfilling a condition for good cause shown.

E. The fulfillment of all conditions shall be reported in writing to the municipal agency which may cause such reports to be verified in an appropriate manner. Only upon fulfillment of all conditions shall subdivision map or site plan be signed or any required building permit, occupancy permit, zoning permit or other required approval be issued.

§ 10-39 Appeals to Land Use Board.

An appeal to the Land Use Board may be taken by any interested party affected by any decision of the administrative officer of the township based on or made in the enforcement of the Zoning Chapter or Official Map. Such appeals shall be taken within 20 days by filing a notice of appeal in the manner set forth in Subsection 10-19A of this chapter, and in accordance with the provisions of N.J.S.A. 40:55D-64 et seq. of the Municipal Land Use Law of 1975.

§ 10-40 Definitions.

Whenever a term is used in this chapter which is defined in Chapter 291 of the Laws of New Jersey 1975, such term is intended to have the meaning set forth in the definition of such term found in said statute, unless a contrary intention is clearly expressed from the context of this chapter.

§ 10-41 Repealer.

All sections of the Land Subdivision Ordinance, Zoning Ordinance, Site Plan Review Ordinance[1] or any other ordinance of the Township of Montague which contain provisions contrary to the provisions of this chapter shall be and are hereby, to the extent of such inconsistency, repealed. All references to the Montague Zoning Board and Planning Board contained in the Code of the Township of Montague not specifically amended by the within ordinance hereinafter shall refer to the Land Use Board.

[1] Editor's Note: See Ch. 60, Subdivision of Land, Ch. 76, Zoning and Ch. 55, Site Plan Review.

§ 10-42 Ordinances continued.

Pursuant to the provisions of Chapter 291 of the Laws of New Jersey 1975, Section 81, the substantive provisions of the existing Land Subdivision Ordinance, Zoning Ordinance and Site Plan Review Ordinance of the Township of Montague and the development regulations set forth therein shall continue in full force and effect for a period of six months from the effective date of this ordinance or until the Township exercises the authority delegated by Chapter 291 of Section 81 of the Laws of New Jersey, 1975 to regulate development, whichever comes first.

§ 10-43 Pending applications.

All applications for development filed prior to the effective date of this chapter may be continued, but any appeals arising out of decisions made on any such application shall be governed by Section 10-39 of this chapter.

§ 10-44 Filing of copies.

Immediately upon adoption of this chapter, the Municipal Clerk shall file a copy of this chapter with the County Planning Board as required by law. The Clerk shall also file with said County Planning Board copies of all other ordinances of the municipality relating to land use, such as the Subdivision, Zoning and Site Plan Review Ordinances.[1]

[1] Editor's Note: See Ch. 60, Subdivision of Land, Ch. 76, Zoning and Ch. 55, Site Plan Review.