Article X Planning Board Establishment and Rules

Members shall be appointed according to the following classes:

Class I: the Mayor, or the Mayor's designee in the absence of the Mayor.

Class II: one of the officials of the Borough other than a member of the Borough Council, to be appointed by the Mayor. However, 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 for purposes of this chapter in the event that there is among the Class IV or alternate members of the Planning Board a member of the Board of Education.

(c)

Class III: a member of the Borough Council to be appointed by it.

(d)

Class IV: other citizens of the Borough, to be appointed by the Mayor. Members of Class IV shall hold no other municipal office, position, or employment except that one member may be a member of the Historic Preservation Commission, if established pursuant to N.J.S.A. 40:55D-1, and one member may be a member of the Board of Education. 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 a Class IV member unless there is among the Class IV or alternate members of the Planning Board a member of the Board of Education, in which case the member common to the Planning Board and Environmental Commission shall be deemed a Class II member of the Planning Board. For the purposes of this section, membership on a Borough board or commission whose function is advisory in nature, and the establishment of which is discretionary and not required by statute, shall not be considered the holding of a Borough office.

Terms of members. Members and alternates of the Planning Board existent under the prior Zoning Ordinance shall retain their membership and their terms shall continue until their term would have expired under the prior ordinance. New appointments to the Planning Board shall be for a term as specified by N.J.S.A. 40:55D-23 and 40:55D-23.1, except in the case of a vacancy created by the resignation or removal of a member or alternate, in which case the appointment shall be for the duration of the unexpired term.

Members and alternates shall not participate in any hearing in which they have, either directly or indirectly, any personal or financial interest.

Any member or alternate other than the Mayor, after a public hearing if he or she requests it, may be removed by the Borough Council for cause.

Alternate members.

The governing body may, by ordinance, provide for the appointment to the Planning Board of not more than four alternate members, who shall be municipal residents. Alternate members shall be appointed by the appointing authority for Class IV members and shall meet the qualifications of Class IV members of nine-member Planning Boards. Alternate members shall be designated at the time of appointment by the Mayor as "Alternate No. 1" and "Alternate No. 2," etc., and shall serve in rotation during the absence or disqualification of any regular member or members of Class IV.

No alternate member shall be permitted to act on any matter in which he/she has, either directly or indirectly, any personal or financial interest. An alternate member may, after public hearing if he requests one, be removed by the governing body for cause.

(c)

Alternate members may participate in all matters but may not vote except in the absence or disqualification of a regular member of any class. Participation of alternate members shall not be deemed to increase the size of the Planning Board established by ordinance of the governing body pursuant to Section 14 of P.L. 1975, c. 291 (N.J.S.A.40:55D-23). 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 must be made as to which alternate member is to vote, Alternate No. 1 shall vote.

§ 390-56 Powers of Planning Board.

The Planning Board shall have to power to:

Prepare, maintain, adopt, and administer the Master Plan.

Prepare, maintain, and administer the Subdivision, Site Plan, and Zoning Ordinances within this chapter and hear and decide applications made pursuant thereto.

Prepare, maintain, and administer the Official Map.

Prepare a capital improvements program.

Review proposed amendments to the Subdivision, Site Plan, and Zoning Ordinances within this chapter and the Official Map and make recommendations regarding the same to the Borough Council, pursuant to N.J.S.A. 40:55D-26a and b.

(6)

Hear and decide applications for conditional uses.

(7)

Hear and decide applications for variances and certain building permits when in conjunction with applications for subdivision, site plan and conditional use approval pursuant to Article 8 of N.J.S.A. 40:55D-1 et seq.

(8)

Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by a Zoning Officer or other administrative officer based on or made in the enforcement of the zoning provisions of this chapter.

(9)

Hear and decide requests for interpretation of the Zoning Map, zoning provisions of this chapter, Official Map, or for decisions upon other special questions upon which the Board is authorized to pass.

(10)

Hear and decide variance requests pertaining to:

"c" variances.

Where: a) by reason of exceptional narrowness, shallowness, or shape of a specific piece of property, or b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or structures lawfully existing thereon, the strict application of any regulation of the zoning provisions of this 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 Municipal Land Use Law would be advanced by a deviation from the zoning provisions of this chapter and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from the zoning provisions of this chapter; provided, however, that no variance from those departures enumerated in Subsection A(10(b) of this section shall be granted under this subsection; and provided, further, that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to review a request for a variance.

"d" variances. In particular cases and for special reasons, grant a variance to allow departure from the zoning provisions of this chapter to permit:

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 pertaining solely to a conditional use.

[4]

An increase in the permitted floor area ratio.

[5]

An increase in the permitted density, except as applied to the required lot area for a lot or lots for detached one- or two-dwelling-unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision.

[6]

A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.

(c)

Variances granted under this subsection shall be granted only by affirmative vote of at least five members. No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning provisions of this chapter.

(d)

If an application for development requests one or more variances, but not a variance for a purpose enumerated in Subsection A(10(b) of this section, the decision on the requested variance or variances shall be rendered under Subsection A(10)(a).

(e)

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the Zone Plan and Zoning Ordinance. In respect to any airport safety zones delineated under the "Air Safety and Zoning Act of 1983," P.L. 1983, c. 260 (N.J.S.A. 6:1-80 et seq.), no variance or other relief may be granted under the terms of this section permitting the creation or establishment of a nonconforming use which would be prohibited under standards promulgated pursuant to that Act, except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.

(11)

Exercise such other powers which are authorized by N.J.S.A. 40:55D-76.

If an application for development requests one or more variances but not a variance for a purpose enumerated in Subsection A(10)(b) of this section, the decision on the requested variance or variances shall be rendered under Subsection A(10)(a) of this section.

No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the Zone Plan and Zoning Ordinance. In respect to any airport safety zones delineated under the "Air Safety and Zoning Act of 1983," P.L. 1983, c. 60 (N.J.S.A. 6:1-80 et seq.), no variance or other relief may be granted under the terms of this section permitting the creation or establishment of a nonconforming use which would be prohibited under standards promulgated pursuant to that Act, except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.

The Planning Board may:

Participate in the exercise and review of programs or plans required by state or federal law or regulation.

Assemble data on a continuing basis as part of a continuous planning process.

§ 390-57 Organization and advisory bodies of Planning Board.

Perform such other advisory duties as may be requested of it by the Borough Council.

The Planning Board shall elect a Chairman and Vice Chairman from the members of Class IV, select a Secretary, who may or may not be a member or alternate member of the Planning Board or a municipal employee, and create and fill such other offices as established by ordinance. An alternate member shall not serve as Chairman or Vice Chairman of the Planning Board. It may employ, or contract for, and fix the compensation of legal counsel, other than the Municipal Attorney, and experts, and other staff and services as it may deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its use. The governing body shall make provision in its budget and appropriate funds for the expenses of the Planning Board.

Advisory bodies.

A Citizens' Advisory Committee may be appointed by the Mayor, and shall serve at the pleasure of the Mayor, to assist or collaborate with the Planning Board in its duties, but such person or persons shall have no power to vote or take other action required of the Board.

§ 390-58 Annual report, expenses and costs of Planning Board.

The Planning Board shall make available to the Environmental Advisory Board an informational copy of every application submitted for development, although failure on the part of the Planning Board to make such informational copy available to the Environmental Advisory Board shall not invalidate any hearing or procedure.

Annual report.

The Planning Board shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report of its findings on the zoning provisions of this chapter which were the subject of variance requests.

The report shall contain recommendations of the Planning Board relative to amendments or revisions to the zoning provisions of this chapter, if any.

The report shall be sent to both the Borough Council.

Expenses and costs.

The Borough Council shall make provision in its budget and appropriate funds for the expenses of the Planning Board.

§ 390-59 Appeals and applications to Planning Board.

The Planning Board may employ, or contract for, and fix the compensation of legal counsel, other than the Borough Solicitor, and experts and other staff and services as it shall deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the Borough Council for its use.

Appeals and applications.

Appeals to the Planning Board may be taken by any interested party affected by any decision of the Zoning Officer or other administrative officer of the Borough based on or made in the enforcement of the zoning provisions of this chapter or the Official Map.

Such appeal shall be taken within 20 days by filing a notice of appeal with the administrative officer, specifying the grounds of such appeal.

The administrative officer shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

A developer may file an application for development with the Planning Board for action under any of its powers without prior application to the Zoning Officer.

Time for decision.

The Planning Board shall render a decision not later than 120 days after the date:

An appeal is taken from the decision of the Zoning Officer or other administrative officer; or

The submission of a complete application for development to the Planning Board.

Failure of the Planning Board to render a decision within the prescribed time period, or within such further time as may be consented to by the developer, shall constitute a decision favorable to the developer. If an applicant elects to submit separate consecutive applications for "d" variance approval and site plan, subdivision or conditional use approval, the 120-day time period for action shall apply to the application for approval of the "d" variance, and the time period for granting or denying any subsequent approval shall be as otherwise provided in this chapter.

If, in the case of an appeal made pursuant to Subsection a of Section 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70), the Planning Board determines there is an error in any order, requirement, decision or refusal made by the Zoning Officer or administrative officer pursuant to a report submitted by the Historic Preservation Commission or Planning Board in accordance with Section 25 of P.L. 1985, c. 216 (N.J.S.A. 40:55D-111), the Planning Board shall include the reasons for its determination in the findings of its decision thereon.

Modification of appeal. The Planning Board may reverse or affirm, wholly or in part, or may modify the action, order, requirement, decision, interpretation or determination appealed from and to that end have all the powers of the Zoning Officer or other administrative officer from whom the appeal is taken.

Stay of proceedings by appeal; exception.

An appeal to the Planning Board shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Zoning Officer or other administrative officer certifies to the Board, after the notice of appeal has been filed with the Zoning Officer or other administrative officer, that, by reason of facts stated in the certificate, a stay would, in the Zoning Officer's or other administrative officer's opinion, cause imminent peril to life or property.

In such case, proceedings shall not be stayed other than by order of the Superior Court upon notice to the Zoning Officer or other administrative officer as designated and on due cause shown.

§ 390-60 Meetings of Planning Board.

Regular meetings of the Planning Board shall be fixed for the entire calendar year and set for a certain time and place. Regular meetings shall be scheduled no less than once a month and shall be held as scheduled unless cancelled for lack of applications for development to process.

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

No action shall be taken at any meeting without a quorum being present, said quorum to be the majority of the full authorized membership of the Board.

All actions shall be taken by a majority vote of the members of the Board at the meeting except as otherwise required by N.J.S.A. 40:55D-1 et seq. A member of the Board who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on a matter upon which the hearing was conducted; provided, however, that such Board member certifies in writing to the Board that he or she has read a transcript or listened to a recording of all of the hearing from which he or she was absent.

All regular and special meetings shall be open to the public, and notice of all such meetings shall be given in accordance with state requirements.

Minutes of every regular and 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, 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 proceedings concerning the subject matter of such minutes. Such interested party shall be charged a reasonable fee for the reproduction of the minutes, as indicated in "Fees, Guarantees, Inspections and Off-Tract Improvement" of this chapter.[1]

§ 390-61 Public hearings of Planning Board.

Editor's Note: See Art. XIII.

The Planning Board shall hold a hearing on each application for development. Each Board shall make rules governing such hearings.

Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the administrative officer. The developer may produce other documents, records, or testimony at the hearing to substantiate, clarify, or supplement the previously filed maps and documents.

The officer presiding at the hearing, or such person as he/she may designate, shall have the 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 (N.J.S.A. 2A:67A-1 et seq.) shall apply.

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 reasonable limitations as to time and number of witnesses.

A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made either by stenographic, mechanical, or other means. The Borough shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his or her expense, provided that the charge for a transcript shall not exceed the maximum amount permitted in N.J.S.A. 2A:11-15. Each transcript shall be certified in writing by the transcriber to be accurate.

If an applicant desires a certified court reporter, the costs of taking testimony and transcribing it and providing a copy of the transcript to the Borough or court shall be at the expense of the applicant, who shall also arrange for the attendance by the reporter. All costs for transcription of the record before the applicable Board shall be the entire and sole obligation of the applicant or appellant, whichever requests the transcript. The obligation to obtain and pay for such transcript shall be solely that of the applicant or appellant who requests the transcript.

§ 390-62 Public notice of hearing of Planning Board.

Public notice of a hearing shall be given by the developer for the following applications for development:

Any request for a variance.

Any request for conditional use approval.

Any request for issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street.

Any request for minor or major site plan and/or subdivision approval involving one or more of the aforesaid elements.

Any request for preliminary approval of a major subdivision.

(6)

Any request for approval of a general development plan.

(7)

Any extension of approvals for five or more years under Subsection d of Section 37 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-49) and Subsection b of Section 40 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-52), for modification or elimination of a significant condition or conditions in a memorializing resolution in any situation wherein the application for development for which the memorializing resolution is proposed for adoption required public notice, and for any other applications for development, with the following exceptions: 1) conventional site plan review pursuant to Section 34 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-46), 2) minor subdivisions pursuant to Section 35 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-47), or 3) final approval pursuant to Section 38 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-50); notwithstanding the foregoing, the governing body may, by ordinance, require public notice for such categories of site plan review as may be specified by ordinance, for appeals of determinations of administrative officers pursuant to Subsection a of Section 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70), and for requests for interpretation pursuant to Subsection b of Section 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70). Public notice shall also be given in the event that relief is requested pursuant to Section 47 or 63 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-60 or N.J.S.A. 40:55D-76) as part of an application for development otherwise excepted herein from public notice. Public notice shall be given by publication in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality.

The administrative officer shall notify the developer at least two weeks prior to the public hearing at which the application will be discussed. Notice of a hearing requiring public notice shall be given by the developer at least 10 days prior to the date of the hearing in the following manner:

By publication in the official newspaper of the Borough, if there is one, or in a newspaper of general circulation in the Borough.

By notice to all owners of real property located in the state and within 200 feet in all directions of the property which is the subject of the hearing, as such owners are shown in the current tax duplicate, provided that this requirement shall be deemed satisfied by notice to the a) condominium association, in the case of any unit owner whose unit has a unit above or below it, or b) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by serving a copy 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 as notice is deemed complete upon mailing.

Notice to a partnership owner may be made by service to any partner. Notice to a corporate owner may be made by service upon its president, vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the public hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners, or homeowners on account of such common elements or areas.

To the Clerk of any adjoining municipality or municipalities when the application for development involves property located within 200 feet of said municipality or municipalities. Notice shall be given by personal service or certified mail.

To the Monmouth County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the County Official Map or on the County Master Plan, adjoining other county land or situated within 200 feet of a municipal boundary. Notice shall be given by personal service or certified mail.

(6)

To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway. Notice shall be given by personal service or certified mail.

(7)

To the State Planning Commission when the application for development involves property which exceeds 150 acres or 500 dwelling units, in which case the notice shall include a copy of any maps or documents required to be filed with the Borough.

(8)

Notice of hearings on applications for approval of a major subdivision or a site plan, not defined as a "minor site plan" by this chapter, requiring public notice pursuant to Subsection A of this section shall be given to public utilities, cable television companies or local utilities which possess a right-of-way or easement within the Borough and which have registered with the Borough in accordance with N.J.S.A. 40:55D-1 et seq. Notice shall be given by personal service or certified mail to the person whose name and address appears on the registration form.

Upon the written request of a developer, the administrative officer or other designated Borough representative shall, within 10 days, make and certify a list from the current tax duplicates of names and addresses of owners within the Borough to whom the developer is required to give notice. In addition, the administrative officer shall include on the list the names, addresses and positions of those persons who, not less than 10 days prior to the date on which the developer requested the list, have registered to receive notice pursuant to Subsection B(8) of this section. The developer shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner or to any public utility, cable television company, or local utility not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name, or $10, whichever is greater, may be charged for such list.

The developer shall file an affidavit of proof of service with the Planning Board.

The notice shall state the date, time and place of the hearing, the nature of the matters to be considered, 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 and documents for which approval is sought are available for inspection.

§ 390-63 Decisions of Planning Board.

The Board shall include findings of fact and conclusions based thereon in each decision on any application for development or other determination or adjudication and shall reduce the decision to writing.

The Board may provide such written decision and findings and conclusions either on the date of the meeting at which the Board grants or denies approval or, if the meeting at which such action is taken occurs within the final 45 days of the applicable time period for rendering a decision on the application for development, within 45 days of such meeting by the adoption of a resolution of memorialization setting forth the decision and findings and conclusions of the Board.

Failure of a motion to approve an application for development or other lawful motion to receive the number of votes required for approval shall be deemed an action denying the application. An action resulting from the failure of a motion to approve the application shall be memorialized by resolution as provided above.

The adoption of a resolution of memorialization pursuant to this subsection shall not be construed to alter the applicable time period for rendering a decision on the application for development. Such resolution shall be adopted by a vote of the majority of the Board members who voted for the action previously taken or such other decision, and no other member shall vote thereon. The vote of such a resolution shall be deemed to be a memorialization of an action taken by the Board and not to be an action of the Board.

Whenever a memorialization is adopted, the date of such adoption shall constitute the date of the decision for purposes of the mailings, filings, and publications specified in "Notice of Decision for Either Board" of this chapter.[1]

§ 390-64 Appeal of decision by Planning Board.

Editor's Note: See § 390-65.

All appeals of decisions made by the Planning Board, except as noted below, shall be taken directly to the identified court of competent jurisdiction.

Any interested party may appeal to the Borough of Oceanport Council any final decision of the Planning Board involving the granting of a variance as specified in N.J.S.A. 40:55D-70d. Such appeals shall be decided upon the record established by the Board of Adjustment. The filing and hearing of such appeals shall be in accordance with the provisions of N.J.S.A. 40:55D-17.

§ 390-65 Notice of decision of Planning Board or Borough Council.

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

A copy of the decision shall be mailed by the municipal agency within 10 days of the date of the decision to the developer or appellant or, if represented, then to his attorney, without separate charge. A copy of the decision shall also be mailed within 10 days to any interested party who has requested it and who has paid the fee prescribed in the "Fees" section of this chapter.[1]