Township of Harmony, NJ Article VII Administration and Enforcement

§ 425-38 Inspections.

A. Routine inspections.

(1) All improvements and utilities shall be inspected by the Township Engineer's office to ensure satisfactory completion.

(2) In no case shall any contribution be done without permission from the Township Engineer's office. At least three working days' notice shall be given to the Township Engineer's office prior to any such construction so that a representative of the Township may be present at the time the work is to be done.

(3) Prior to the commencement of construction and in February of each succeeding year, the subdivider shall submit a schedule of his operations for the succeeding year to the Township Engineer.

B. Final inspection. A final inspection of all improvements and utilities will be made to determine whether the work is satisfactory and in substantial agreement with the approved drawings and the Township specifications. The general condition of the site shall also be considered. Upon a satisfactory final inspection report, action will be taken to release the performance guaranty covering such improvements and utilities.

§ 425-39 Guaranties.

[Amended 11-6-2018 by Ord. No. 18-9]

A. Guaranties required. Before the filing of a final subdivision plat or recording of minor subdivision deeds or as a condition to the issuance of a zoning permit, the municipality may require and shall accept for the purpose of assuring the installation and maintenance of certain on tract improvements the furnishing of a performance guarantee, and provision for a maintenance guarantee in accordance with the following.

(1) Performance guarantees.

(a) Public improvements performance guarantee. Developers shall be required to furnish a public improvements performance guarantee in favor of the municipality in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval or developer's agreement, ordinance or regulation to be dedicated to a public entity, and that have not yet been installed, which cost shall be determined by the municipal engineer in accordance with N.J.S.A. 40:55D-53.4 for the following improvements as shown on the approved plans or plat: streets, pavement, gutters, curbs, sidewalks, street lighting, street trees, surveyor's monuments as shown on the final map as required by the Map Filing Law,[1] and water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements. The municipal engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

[1] Editor's Note: See now N.J.S.A. 46:26B-1 et seq.

(b) Perimeter buffer landscaping performance guarantee. The municipality may require a perimeter buffer landscaping performance guarantee for privately owned perimeter buffer landscaping within a development or section of a development which has been imposed as a condition of development approval. At the developer's option, a separate performance guarantee may be posted for the privately owned perimeter buffer landscaping.

(c) Temporary certificate of occupancy performance guarantee. The municipality may require a temporary certificate of occupancy performance guarantee in the event that the developer seeks a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, in an amount equal to 120% of the cost of installation of only those improvements or items which remain to be completed or installed under the terms of the temporary certificate of occupancy and which are required to be installed or completed as a condition precedent to the issuance of the permanent certificate of occupancy for the development, unit, lot, building or phase of development and which are not covered by an existing performance guarantee. Upon the posting of a temporary certificate of occupancy guarantee, all sums remaining under any public improvements performance guarantee as required above which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought shall be released. The scope and amount of the temporary certificate of occupancy guarantee shall be determined by the municipal engineer or Zoning Officer. At no time may a municipality hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy guarantee shall be released by the municipal engineer or Zoning Officer upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.

(d) Safety and stabilization performance guarantee.

[1] The municipality may require a safety and stabilization performance guarantee for a development for the purpose of returning property that has been disturbed to a safe and stable condition or otherwise implementing measures to protect the public from access to an unsafe or unstable condition. At the developer's option, the safety and stabilization guarantee may be furnished either as a separate guarantee or as a line item of the performance guarantee. The guarantee shall be claimed by the municipality only in the circumstance that 1) site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure, and 2) work has not recommenced within 30 days following the provision of written notice by the municipality to the developer of the municipality's intent to claim payment under the guarantee. A municipality shall not provide notice of its intent to claim payment under a safety and stabilization guarantee until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. A municipality shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.

[2] The amount of a safety and stabilization guarantee for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000.

[3] The amount of a safety and stabilization guarantee for a development with bonded improvements exceeding $100,000 shall be calculated as a percentage of the bonded improvement costs of the development or phase of development as follows: $5,000 for the first $100,000 of bonded improvement costs, plus 2 1/2% of bonded improvement costs in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement costs in excess of $1,000,000.

[4] The municipality shall release any separate safety and stabilization guarantee to a developer upon the developer's furnishing of a performance guarantee which includes a line item for safety and stabilization in the amount required under this subsection. The municipality shall release a safety and stabilization guarantee upon the municipal engineer's determination that the development of the project site has reached a point that the improvements installed are adequate to avoid any potential threat to public safety.

(2) Maintenance guarantees.

(a) Public improvement and perimeter buffer landscaping maintenance guarantee. Developers shall be required to post with the municipality, prior to the release of a public improvement performance guarantee and/or a perimeter buffer landscaping performance guarantee, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released. The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the end of the established term.

(b) Private improvements maintenance guarantee. The municipality may require, upon the inspection and issuance of final approval of the following private site improvements by the municipal engineer, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any, which cost shall be determined according to the method of calculation set forth in N.J.S.A. 40:55D-53.4. The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the end of the established term.

B. Form of guarantee. The form of the guarantee shall be as approved by the Township Attorney, and the amount of the guaranty shall be as determined by the Township Engineer.

C. Liability during construction. The applicant shall assume all liability during construction of such improvements and until such time as the improvements are accepted by the municipality.

D. Improvements owned by other governmental agencies or public utilities. In the event that other governmental agencies or public utilities will own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the municipality, for such utilities or improvements.

E. Time allowed for installation of bonded improvements. The time allowed for installation of the bonded improvements for which the performance guarantee has been provided may be extended by the governing body by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the municipal engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.

F. Completion of bonded improvements by the municipality. If the required bonded improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected and the municipality may either prior to or after the receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.

G. Reduction or release of performance guarantee.

(1) Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the municipal clerk, that the municipal engineer prepare, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the public improvements performance guarantee, a list of all uncompleted or unsatisfactory completed bonded improvements. If such a request is made, the obligor shall send a copy of the request to the municipal engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon the municipal engineer shall inspect all bonded improvements covered by obligor's request and shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.

(2) The list prepared by the municipal engineer shall state, in detail, with respect to each bonded improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed bonded improvement determined to be unsatisfactory. The report prepared by the municipal engineer shall identify each bonded improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory bonded improvement, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the public improvements performance guarantee.

(3) The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the municipal engineer, or reject any or all of these bonded improvements upon the establishment in the resolution of cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the public improvements performance guarantee. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the municipal engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee with respect to those approved bonded improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the total performance guarantee and safety and stabilization guarantee posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guarantee shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction.

(4) For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the public improvements performance guarantee including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 25% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee and safety and stabilization guarantee to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a temporary certificate of occupancy guarantee has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30%.

(5) If the municipal engineer fails to send or provide the list and report as requested by the obligor within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the municipal engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(6) If the governing body fails to approve or reject the bonded improvements determined by the municipal engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within 45 days from the receipt of the municipal engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the public improvements performance guarantee; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(7) In the event that the obligor has made a cash deposit with the municipality or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee provided that if the developer has furnished a safety and stabilization guarantee, the municipality may retain cash equal to the amount of the remaining safety and stabilization guarantee.

(8) If any portion of the required bonded improvements is rejected, the approving authority may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification, as set forth in this section, shall be followed.

(9) Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the municipal engineer.

H. Acceptance of dedication of public improvements. To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any public improvements performance guarantee, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the municipal engineer.

§ 425-40 Noncompliance.

Failure to comply with any of the conditions of approval granted as provided in this chapter subsequent to the receipt of a building permit or certificate of occupancy, as the case may be, shall be construed to be a violation of this chapter and shall be grounds for the revocation of any building permit or certificate of occupancy, as the case may be. If the Township Engineer finds that any conditions of approval have not been met, he shall give the applicant 10 days' written notice to comply with said conditions, and failure to comply within this ten-day period shall result in revocation of the building permit or certificate of occupancy, as the case may be. Such violations may additionally or singly also be prosecuted under § 425-42.

§ 425-41 Fees.

A. Application fees.

[Amended 9-1-1987 by Ord. No. 0:87-12; 7-5-1988 by Ord. No. 0:88-8]

(1) Sketch plat.

(a) Upon the filing of a plat of a proposed minor subdivision, the subdivider shall submit to the Township of Harmony a nonrefundable fee of $1,000, plus $300 per lot, inclusive of the remaining parcel, which shall be considered a separate lot for the purpose of this fee schedule.

[Amended 11-10-2003 by Ord. No. 03-10]

(b) In the event that the application is found to be substantially incomplete and a resubmission of the same is required, such resubmission shall be accompanied by a resubmission fee of $150 to cover the costs to the Township of additional administration and engineering reviews.

(c) In addition to the fees described in § 425-41A(1)(a), the subdivider shall submit $3,500 to the Township of Harmony to be placed in an escrow account to be maintained by the Township which account shall be subject to the costs of administration of said application on account of legal, engineering, planning, and other professional services rendered in conjunction therewith. In the event the actual costs of administration of the application exceed or are reasonably anticipated to exceed the escrow funds remaining on deposit with the Township, the applicant shall be so notified and shall be required to post such additional escrow fees which shall be anticipated to be necessary to reimburse the Township for the costs of professional services rendered on account of the administration of such application. In the event the fees deposited into escrow exceed the actual costs, the applicant may obtain a refund as detailed in § 425-41A(6).

[Added 8-4-2009 by Ord. No. 09-8]

(2) Preliminary plat. Upon the filing of a preliminary plat of a proposed major subdivision, the subdivider shall pay to the Township of Harmony an additional fee of $1,000, plus $185 per lot, inclusive of the remaining parcel, which shall be considered a separate lot for the purpose of this fee schedule.

(3) Final plat. Upon the filing of a final plat of any major subdivision, the subdivider shall pay to the Township of Harmony, in addition to the other fees paid prior to such filing, an additional fee of $350, plus $50 per lot for each lot depicted on said final plat, inclusive of the remaining parcel, which shall be considered a separate lot for the purpose of this fee schedule.

(4) Concept plan. Upon the filing of a concept plan for informal discussion by the Land Use Board, the applicant shall submit to the Township of Harmony a fee of $200, plus $45 per lot, inclusive of the remaining parcel, which shall be considered a separate lot for the purpose of this fee schedule. Such fees shall constitute a credit in favor of the applicant against any fees subsequently paid by the applicant for a formal application submitted in furtherance of the concept plan previously submitted.

(5) Escrow account.

(a) All of the above-referenced fees payable on a per-lot basis, except upon the filing of a plat of a proposed minor subdivision, on account of the applications for development as specified hereinabove, shall be placed in an escrow account to be maintained by the Township, which account shall be subject to the costs of administration of said application on account of legal, engineering, planning and other professional services rendered in conjunction therewith.

(b) Such account shall be a separate and distinct account from that to be established and maintained on account of inspections, conducted by the Township Engineer or his authorized representatives of the construction of improvements resulting from the approval of a development application.

(c) In the event that the actual costs of administration of the application on account of legal, engineering, planning and other professional services rendered in conjunction therewith exceed or are reasonably anticipated to exceed the escrow funds remaining on deposit with the Township, the applicant shall be so notified and shall be required to post such additional escrow fees which shall be anticipated to be necessary to reimburse the Township for the costs of professional services to be rendered on account of the administration of such application.

(d) In the event that the applicant shall refuse or neglect to pay such additional fees after having been so re quested by the Township, in writing, the application shall be deemed incomplete, no further review work shall be conducted thereon and the Land Use Board to which the application has been submitted shall take no further official action with respect thereto.

(6) In the event that the fees required herein shall be determined, at the conclusion of the administration of the application, to have exceeded the actual costs of such administration and surplus funds shall remain on deposit with the Township, such surplus funds shall be subject to refund to the applicant, provided that the applicant shall have so requested, in writing, within six months of the date the review and administration of said application was concluded. Prior to the release and return of said funds to the applicant, the Township shall have first received the written authorization of its land use professionals involved in the administration of the application, which shall include a certification that all fees chargeable on account of services rendered to the application have been paid and no further costs to the Township are anticipated to be incurred.

B. Inspection fees.

[Amended 11-6-2018 by Ord. No. 18-9]

(1) The obligor shall reimburse the municipality for reasonable inspection fees paid to the municipal engineer for the foregoing inspection of improvements, which fees shall not exceed the sum of the amounts set forth below. The municipality may require the developer to post the inspection fees in escrow in an amount:

(a) Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements that are subject to a public improvements performance guarantee and/or a perimeter buffer landscaping performance guarantee; and

(b) Not to exceed 5% of the cost of private site improvements that are not subject to a public improvements performance guarantee, which cost shall be determined pursuant to N.J.A.C. 40:55D-53.4.

(2) For those developments for which the inspection fees total less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the municipal engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees.

(3) For those developments for which the inspection fees total $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited in escrow by a developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the municipal engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.

(4) If the municipality determines that the amount in escrow for the payment of inspection fees, as calculated above, is insufficient to cover the cost of additional required inspections, the municipality may require the developer to deposit additional funds in escrow provided that the municipality delivers to the developer a written inspection escrow deposit request, signed by the municipal engineer, which informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimates the time required for those inspections, and estimates the cost of performing those inspections.

C. Fee procedure. All fees shall be paid in the form of cash or a check made payable to the Township of Harmony. If, at the completion and municipal approval and acceptance of all required improvements in an entire site plan, the sum deposited with the Township Clerk by the developer, pursuant to the above, to cover the cost of engineering, planning, inspection and legal services should exceed the expense actually incurred by the Township for such services, the developer, upon written request made within one year following the date of such acceptance, shall be entitled to the return of the amount by which its deposits aforesaid exceed such actual cost, without interest.

§ 425-42 Violations and penalties.

[Amended 8-7-1990 by Ord. No. 0:90-15; at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

A. If, before final subdivision approval has been granted, any person transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval, as owner or agent, any land which forms a part of a subdivision for which municipal approval is required by this chapter, such person shall be subject to a penalty not to exceed $1,000, and each lot disposition so made may be deemed a separate violation.

B. In addition to the foregoing, the municipality may institute and maintain a civil action:

(1) For injunctive relief; and

(2) To set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of compliance has not been issued in accordance with N.J.S.A. 40:55D-56, but only if the municipality has a planning board and has adopted by ordinance standards and procedures in accordance with N.J.S.A. 40:55D-38.

C. In any such action, the transferee, purchaser or grantee shall be entitled to a lien upon the portion of the land, from which the subdivision was made that remains in the possession of the developer or his assigns or successors, to secure the return of any deposits made or purchase price paid, and also, a reasonable search fee, survey expense and title closing expense, if any. Any such action must be brought within two years after the date of the recording of the instrument of transfer, sale or conveyance of said land or within six years, if unrecorded.