Township of Bordentown, NJ Article VII Planning Board [1]

[1] Editor's Note: The title of this article was revised from "Zoning Board of Adjustment and Planning Board" to "Planning Board" 1-27-2020 by Ord. No. 2020-01. This ordinance also abolished the Zoning Board of Adjustment, except that any applications then pending before said Zoning Board of Adjustment will continue to be heard; granted all powers of the former Zoning Board of Adjustment to the Planning Board; and removed all references to the "Zoning Board of Adjustment" in this Article VII.

Section 2 of Ord. No. 2020-01 stated that any Class I and Class III member of the Planning Board shall not participate in the consideration of any applications of development which involve relief pursuant to Subsection (d) of N.J.S.A. 40:55D-70.

Section 3 of Ord. No. 2020-01 stated that its purpose is to grant the powers of the former Zoning Board of Adjustment to the Planning Board and that, if there is any ordinance of the Township which grants powers to the Zoning Board of Adjustment, said powers shall now lie with the Planning Board.

§ 500-701 through § 500-703. (Reserved) [1]

[1] Editor's Note: Former § 25.701, Establishment of the Zoning Board of Adjustment, former § 25-702, Powers and jurisdiction of the Zoning Board of Adjustment, and former § 25.703, Appeals and applications to the Zoning Board of Adjustment, were repealed 1-27-2020 by Ord. No. 2020-01.

§ 500-704 Establishment of Planning Board.

A. A Planning Board is hereby created consisting of nine regular and four alternate members of the following four classes:

[Amended 1-27-2020 by Ord. No. 2020-01]

Class I	The Mayor
Class II	One of the officials of the Township other than a member of the Township Committee, to be appointed by the Mayor
Class III	A member of the Township Committee to be appointed by it
Class IV-Regular	Six citizens of the Township to be appointed by the Mayor; the members of Class IV shall hold no other municipal office, except that one may be a member of the Board of Education; a member of the Environmental Commission who is also a member of the Planning Board, as required by N.J.S.A. 40:56A, shall be a Class IV Planning Board member unless there be among the Class IV regular or alternate members of the Planning Board a member of the Board of Education, in which case the member of the Environmental Commission shall be the Class II member of the Planning Board
Class IV-Alternate	Four other citizens of the Township to be appointed by the Mayor; alternate members shall meet the qualifications of Class IV regular members and shall be designated by the Mayor at the time of their appointment as "Alternate No. 1" and "Alternate No. 2"

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

C. All present Class IV members of the Planning Board shall continue in office until the completion of the terms for which they were appointed. The term of a Class IV member who is also a member of the Board of Education shall terminate whenever he or she is no longer a member of that other body or at the completion of his or her Class IV term, whichever comes first.

D. The terms of Class IV regular members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of the term shall be evenly distributed over the first four years after their appointment, provided that the initial term shall not exceed four years. Thereafter the term of each Class IV regular member shall be four years. All terms shall run from January 1 of the year in which the appointment is made.

E. The terms of the Class IV alternate members shall be two years, except that the terms of the alternate members shall be such that the term of not more than two alternate members shall expire any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. All terms shall run from January 1 of the year in which the appointment is made.

F. Alternate members may participate in discussions of the proceedings 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 must be made as to which alternate member is to vote, Alternate No. 1 shall vote.

G. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term. Any member other than a Class I member may be removed by the Township Committee for cause but only after public hearing, if requested, and other requested procedural due process protection.

H. The Planning Board shall organize annually by selecting from among its Class IV regular members a Chairman and a Vice Chairman. The Board shall also select a Secretary who may or may not be a member of the Board or an employee of the Township.

I. The Township Committee, after giving due consideration to budget requests that may be submitted by the Planning Board, shall make provisions in its budget and appropriate funds for the expenses of the Planning Board.

J. The Office of Planning Board Attorney is hereby created. The Planning Board may appoint to that office and fix the compensation or rate of compensation of an attorney at law of New Jersey other than the Township attorney.

K. The Planning Board may also employ or contract for and fix the compensation of those experts and other staff and services as it may deem necessary.

L. The Board, however, shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the Township Committee for its use.

§ 500-705 Powers and jurisdiction of Planning Board.

The Planning Board shall have the powers listed below in addition to other powers established by law:

A. Make, 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 an essential relationship to the planning of the Township.

B. Administer the subdivision and site plan review provisions of this chapter in accordance with the applicable provisions of this chapter.

C. Hear and decide applications for conditional uses in accordance with the applicable provisions of this chapter.

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

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

F. Annually, at the request of the Township Committee, prepare a program of municipal capital improvements projects projected over a term of six years and recommend the same to the Township Committee.

G. Consider and report to the Township Committee within 35 days after referral as to any proposed development regulation submitted to it and also pass upon other matters specifically referred to the Planning Board by the Township Committee.

H. Whenever the proposed development requires approval of a subdivision, site plan or conditional use, but not a variance pursuant to N.J.S.A. 40:55D-70(d):

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

(1) To grant:

(a) Variances pursuant to N.J.S.A. 40:55D-70(c).

(b) Direction pursuant to N.J.S.A. 40:55D-34 for issuance of a 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.

(c) 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.

(2) Whenever relief is requested pursuant to this subsection, notice of the 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.

(3) 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. Any separate approval of the variance or direction of the issuance of a permit, shall be conditioned upon grant of all required subsequent approvals by the Planning Board. No such subsequent approval shall be granted unless the 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 the zoning provisions of this chapter.

I. Pursuant to N.J.S.A. 40:55D-25c, to exercise, to the same extent and subject to the same restrictions, all the powers of a zoning board of adjustment (see N.J.S.A. 40:55D-70 et seq.); but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of section 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70).

[Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

§ 500-706 Provisions applicable to Planning Board.

A. Conflicts of interest. No regular or alternate member of the Planning Board shall act on any matter in which that member has either directly or indirectly any personal or financial interest. Whenever any member shall disqualify himself or herself from acting on a particular matter, that member shall not continue to sit with the Board on the hearing of that matter nor participate in any discussion or decision relating to that matter.

B. Meetings.

(1) Meetings of the Planning Board shall be scheduled no less than once a month and any meeting so scheduled shall be held as scheduled unless cancelled for lack of applications for development to process.

(2) 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 its members and the public in accordance with all applicable legal requirements.

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

(4) All actions shall be taken by majority vote of the members of the Board present at the meeting except as otherwise required by a provision of 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, notwithstanding his or her absence from one or more of the meetings; provided, however, that the Board member has available the transcript or recording of all of the hearing from which the member was absent, and certifies in writing to the Board that he or she has read the transcript or listened to the recording.

(5) All regular meetings and all special meetings shall be open to the public, except as provided in the Open Public Meeting Act, N.J.S.A. 10:4-6. Notice of all meetings shall be given in accordance with the requirements of the Open Public Meeting Act, N.J.S.A. 10:4-6.

C. Public hearings.

(1) The Planning Board shall hold a hearing on each application for development. The Board shall make rules governing the conduct of those hearings.

(2) 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 applicant may produce any documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

(3) The officer presiding at the hearings, or a person designated by the presiding officer, 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.

(4) The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, or another person designated 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.

D. Public notice of a hearing.

(1) Public notice of a hearing shall be given for the following applications for development:

(a) Any request for a variance;

(b) Any appeal from the administrative officer;

(c) Any request for an interpretation;

(d) Any request for conditional use approval;

(e) 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;

(f) Any request for site plan and/or subdivision approval involving one or more of the aforesaid elements;

(g) Any request for preliminary approval of a major subdivision and/or preliminary major site plan;

(h) Any request for approval of a planned development; and

(i) Any matter where the Board determines that it is in the public interest that notice be given of the time and date of the hearing.

(2) The Secretary of the Planning Board shall notify the applicant 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 applicant at least 10 days prior to the date of the hearing in the following manner:

(a) By publication in an official newspaper of the Township, if there is one, or in a newspaper of general circulation in the Township in the absence of an official newspaper.

(b) By notification by personal service or certified mail to the following. An affidavit of proof of the giving of the required notice shall be filed by the applicant with the municipal agency at, or prior to, the hearing. It is not required that a return receipt is obtained; notice is deemed complete upon mailing (N.J.S.A. 40:55D-14).

[1] To all owners of real property as shown on the current tax duplicate, located in the state and within 200 feet in all directions of the property which is the subject of the hearing, provided that this requirement shall be deemed satisfied by notice to the: 1) condominium association, in the case of any unit owner whose unit has a unit above or below it; or 2) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it.

[a] Notice to a partnership owner may be made by service upon any partner.

[b] 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 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 hearing, may be made in the same manner as to a corporation without further notice to unit owners, coowners, or homeowners on account of the common elements or areas.

[2] To the clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of the adjoining municipality or municipalities.

[3] To the Burlington County Planning Board when the application for development involves property adjacent to an existing county road or proposed road as shown on the County Official Map or County Master Plan, adjoining other county land or situated within 200 feet of a municipality boundary.

[4] To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway and to the New Jersey Turnpike Authority when the property abuts the New Jersey Turnpike.

[5] To the State Planning Commission when the hearing involves an application for the development of 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 Township.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

(3) Upon the written request of an applicant, the administrative officer shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners within the Township to whom the applicant is required to give notice. The applicant shall be charged a fee, as set forth in § 500-901, for the list and shall be entitled to rely upon the information contained in the list, and failure to give notice to any lot owner not on the list shall not invalidate any hearing or proceeding. Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to § 500-706D(2)(b) above who do not reside within the Township.

(4) The notice shall state the date, time and place of the hearing and the nature of the matters to be discussed, and an identification of the property proposed for development by street address, if any, and by reference to lot and block numbers as shown on the current tax duplicate in the Township Tax Assessor's office, and the location and times at which any maps or documents for which approval is sought are available for inspection.

E. Records.

(1) Minutes of every regular or special meeting shall be kept and shall include the names and addresses of the persons appearing and addressing the Planning Board and of any persons appearing by attorney, the action taken by the Planning Board, the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available, after approval by the Board, for public inspection during the normal business hours at the office of the administrative officer. 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 the minutes. The interested party shall be charged a reasonable fee for the reproduction of the minutes, as provided in § 500-901.

(2) A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made either by stenographer, mechanical or electrical means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at the expense of that party, provided that the charge for a transcript shall not exceed the maximum amount permitted in N.J.S.A. 2B:7-4, and as provided in § 500-901. Each transcript shall be certified in writing by the transcriber to be accurate.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

F. Decisions.

(1) Each decision on any application for development shall be reduced to writing by the Board and shall include findings of facts and conclusions based thereon.

(2) The Board shall provide the findings and conclusions through:

(a) A resolution adopted at a meeting held within the time period provided in this chapter for action by the Board 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 Board voted to grant or deny approval. Only the members of the Board who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of those 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 voting against the motion for approval being the members eligible to vote on the memorializing resolution.

(3) The vote on any memorializing resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required in § 500-708.

(4) If the Board 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 Board to reduce its findings and conclusions to writing within a stated time and the cost of the application, including attorneys' fees, shall be assessed against the municipality.

§ 500-707 Appeal of decisions.

[Ord. No. 2001-03, § II, 6-11-2001]

A. Any interested party, as defined in N.J.S.A. 40:55D-4, may appeal to the Township Committee any final decision of the Planning Board approving an application for a use variance pursuant to N.J.S.A. 40:55D-70d and § 500-707D. Notwithstanding the right of appeal to the Township Committee, any party has the right to obtain a review of the Planning Board decision by any court of competent jurisdiction according to law.

B. Any appeal to the Township Committee shall be made within 10 days of the date of publication of the final decision pursuant to § 500-708. The appeal to the Township Committee shall be made by serving the Township Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and the name and address of his or her attorney, if represented.

C. The appellant shall either:

(1) Within five days of serving notice of the appeal, arrange for a transcript for use by the Township Committee and pay a deposit of $50 or the estimated cost for the transcription, whichever is less; provided that the charge by the Township to the applicant for the transcript shall not exceed the maximum permitted in N.J.S.A. 2B:7-4; or

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

(2) Within 35 days of serving notice of the appeal, submit a transcript to the Township Clerk for use by the Township Committee. Should the appellant fail to arrange for or to submit a transcript as provided above, the Township Committee may dismiss the appeal for failure to prosecute. All transcripts shall be certified in writing by the transcriber to be accurate.

D. Notice of the meeting to review the record below shall be given by the Township Committee by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 500-708, and to the Planning Board at least 10 days prior to the date of the meeting. The appeal shall be decided by the Township Committee only upon the record established by the Planning Board. The parties may submit oral and written arguments on the record at the Township Committee meeting, and the Township Committee shall provide and pay for verbatim recording and transcripts of that meeting.

E. The Township Committee shall conclude a review of the record below not later than 95 days from the publication of the notice of the subject decision of the Planning Board, unless the appellant consents in writing to an extension of the time period. Failure of the Township Committee to hold a hearing and conclude a review of the record below and to render a decision within the specified period without the written consent of the appellant shall constitute a decision affirming the action of the Planning Board.

F. The Township Committee may reverse, remand or affirm, with or without conditions, the final decision of the Planning Board being appealed. The affirmative vote of three members of the Township Committee shall be necessary to reverse, remand, or impose or remove conditions upon the final decision. In the event that an affirmative vote of three members of the Township Committee is not obtained, the final decision shall be deemed affirmed without change.

G. An appeal to the Township Committee shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Planning Board certifies to the Township Committee, after the notice of appeal has been filed with the Board, that by reasons of facts stated in the certificate a stay would, in its opinion, cause imminent peril to life or property. In that case, proceedings shall not be stayed other than by an order of the Superior Court on application, with notice to the Planning Board and on good cause shown.[1]

[1] Editor's Note: Prior to the reenactment of former § 25.707 by Ord. No. 2001-03, § III of Ord. No. 2000-05, adopted 5-9-2000, repealed § 25.707, which pertained to appeal of decisions and derived from the original land development ordinance, adopted 8-14-1990.

§ 500-708 Notice of decisions.

Notice of any decision of the Planning Board when acting upon an application for development and of any decision of the Township Committee when acting upon an appeal shall be given in the following manner:

A. A copy of the decision shall be mailed by the appropriate Township authority within 10 days of the date of decision to the applicant or appellant, or, if represented, then to his or her 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 by the Township for the service.

B. The administrative officer shall cause a brief notice of every decision of the Planning Board or Township Committee, as the case may be, to be published in the official newspaper of Bordentown Township, the cost of publication to be charged to the applicant's escrow account. The notice shall be sent to the official newspaper within 10 days of the date of the decision.

C. A copy of the decision shall also be filed in the office of the administrative officer, 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.

§ 500-709 Expiration of variances.

A. Any use variance for which the use has not been actually commenced within one year after the date of the publication of the decision granting the variance shall expire and shall be considered to have been abandoned. The use thereby permitted shall not be thereafter permitted on the basis of that variance.

B. Any other variance which has been granted by the Planning Board in conjunction with an approved subdivision or an approved site plan shall expire:

(1) One hundred eighty days after the date of the publication of the decision granting the variance in conjunction with the approval of a subdivision unless the subdivision shall have been completed by the filing and recording of a plan or a deed as required by law;

(2) One year after the date of the publication of the decision granting the variance, unless the construction for which the variance has been requested has been commenced;

(3) A variance granted in conjunction with the approval of a site plan shall expire and shall be treated as having been abandoned on the same date that the approval of the site plan shall expire as provided by law.

C. The Planning Board may, for good cause, extend the expiration date of a variance for not more than one additional year.