A.
Establishment. A Planning Board is hereby created for the purposes
set forth in this chapter and for such other duties as may from time
to time be assigned to it by the Borough Council. The Planning Board
shall consist of nine members and up to four alternates, who shall
be designated "Alternate No. 1" and "Alternate No. 2." All members
of the Planning Board, except for the Class II members set forth below,
shall be municipal residents.
B.
Membership.
(1)
Members shall be appointed according to the following classes:
(a)
Class I: the Mayor, or the Mayor's designee in the absence of
the Mayor.
(b)
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.
(2)
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.
(3)
Members and alternates shall not participate in any hearing in which
they have, either directly or indirectly, any personal or financial
interest.
(4)
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.
(5)
Alternate members.
(a)
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.
(b)
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.
A.
The Planning Board shall have to power to:
(1)
Prepare, maintain, adopt, and administer the Master Plan.
(2)
Prepare, maintain, and administer the Subdivision, Site Plan, and
Zoning Ordinances within this chapter and hear and decide applications
made pursuant thereto.
(3)
Prepare, maintain, and administer the Official Map.
(4)
Prepare a capital improvements program.
(5)
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:
(a)
"c" variances.
[1]
Where: a) by reason of exceptional narrowness, shallowness,
or shape of a specific piece of property, or b) by reason of exceptional
topographic conditions or physical features uniquely affecting a specific
piece of property, or c) by reason of an extraordinary and exceptional
situation uniquely affecting a specific piece of property or 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.
(b)
"d" variances. In particular cases and for special reasons,
grant a variance to allow departure from the zoning provisions of
this 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 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.
(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.
C.
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.
D.
The Planning Board may:
A.
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.
B.
Advisory bodies.
(1)
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.
(2)
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.
A.
Annual report.
(1)
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.
(2)
The report shall contain recommendations of the Planning Board relative
to amendments or revisions to the zoning provisions of this chapter,
if any.
(3)
The report shall be sent to both the Borough Council.
B.
Expenses and costs.
(1)
The Borough Council shall make provision in its budget and appropriate
funds for the expenses of the Planning Board.
(2)
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.
A.
Appeals and applications.
(1)
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.
(2)
Such appeal shall be taken within 20 days by filing a notice of appeal
with the administrative officer, specifying the grounds of such appeal.
(3)
The administrative officer shall immediately transmit to the Board
all the papers constituting the record upon which the action appealed
from was taken.
(4)
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.
B.
Time for decision.
(2)
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.
(3)
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.
C.
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.
D.
Stay of proceedings by appeal; exception.
(1)
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.
(2)
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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]
A.
The Planning Board shall hold a hearing on each application for development.
Each Board shall make rules governing such hearings.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
Public notice of a hearing shall be given by the developer for the
following applications for development:
(1)
Any request for a variance.
(2)
Any request for conditional use approval.
(3)
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.
(4)
Any request for minor or major site plan and/or subdivision approval
involving one or more of the aforesaid elements.
(5)
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.
B.
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:
(1)
By publication in the official newspaper of the Borough, if there
is one, or in a newspaper of general circulation in the Borough.
(2)
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.
(3)
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.
(4)
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.
(5)
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.
C.
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.
D.
The developer shall file an affidavit of proof of service with the
Planning Board.
E.
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.
A.
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.
B.
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.
C.
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.
D.
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.
A.
All appeals of decisions made by the Planning Board, except as noted
below, shall be taken directly to the identified court of competent
jurisdiction.
B.
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.
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.
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]
B.
A brief notice of the decision shall be published in the official
newspaper of the Borough. Such publications shall be arranged by the
Secretary of the Planning Board or the Borough Clerk or agents thereof,
as the case may be, without separate charge to the developer. The
notice shall be sent to the official newspaper for publication within
10 days of the date of the decision.
C.
A copy of the decision shall also be filed in the office of the Municipal
Clerk, who shall make a copy of such filed decision available to any
interested party upon payment of a reasonable fee and available for
public inspection at the office during business hours.
