Borough of Eatontown, NJ Article III Creation of Boards

§ 89-5 Municipal Planning Board.

A. Establishment. There is hereby established pursuant to Chapter 291, P.L. 1975, N.J.S.A. 40:55D-23 et seq., in the Borough of Eatontown a Municipal Planning Board of nine members consisting of the following four classes:

(1) Class I: the Mayor.

(2) Class II: one of the officials of the municipality other than a member of the governing body to be appointed by the Mayor; provided that 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 if there is both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV or alternate members.

[Amended by Ord. No. 3-80]

(3) Class III: a member of the governing body to be appointed by the Borough Council.

(4) Class IV: six other citizens of the Borough to be appointed by the Mayor.

B. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and 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-1 shall be a Class IV Planning Board member unless there be among the Class IV or alternate members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be a Class II member of the Planning Board.

[Amended by Ord. No. 3-80]

C. Alternate members.

[Amended by Ord. No. 3-80; 9-22-2021 by Ord. No. 26-2021]

(1) There shall be two alternate members who shall be citizens of the Borough and appointed by the Mayor. Alternate members shall meet the requirements of Class IV members and upon appointment shall be designated as Alternate No. 1 and Alternate No. 2.

(2) Alternate members may participate in all Planning Board matters but may not vote except in the absence or disqualification of a regular member of any class member of the Planning Board. If a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.

(3) An alternate member may, after public hearing if one is requested, be removed by the Borough Council for cause.

D. Terms.

[Amended by Ord. No. 25-95]

(1) The term of the Mayor as the Class I member shall correspond to the Mayor's official tenure. The term of the Mayor's designee as the Class I member shall be at the pleasure of the Mayor during his 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 their term of office as a member of the Environmental Commission, whichever occurs first.

(2) The term of a Class IV member who is also a member of the Board of Adjustment or Board or Education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first.

(3) The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent, the expiration of such term shall be distributed evenly over the first four years after their appointment as determined by resolution of the governing body, provided, however, that no term of any member shall exceed four years and further provided that nothing herein shall affect the term of any present member of the Planning Board, all of whom shall continue in office until the completion of the terms for which they were appointed. Thereafter, all Class IV members shall be appointed for terms of four years except as otherwise hereinabove provided. All terms shall run from January 1 of the year in which the appointment is made.

(4) The terms of the alternate members shall be for two years except that that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year.

[Added 9-22-2021 by Ord. No. 26-2021]

(5) A vacancy of an alternate member occurring otherwise than by expiration of term shall be filled by the Mayor for the unexpired term only.

[Added 9-22-2021 by Ord. No. 26-2021]

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

F. Organization of Board. The Planning Board shall elect a Chairman and Vice Chairman both from the members of Class IV and select a Secretary who may either be a member of the Planning Board or a municipal employee designated by the Board.

G. (Reserved)[1]

[1] Editor's Note: Former Subsection G, Limitations on appointments, added 4-24-2019 by Ord. No. 08-2019, was repealed 12-7-2022 by Ord. No. 25-2022.

§ 89-6 Zoning Board of Adjustment.

A. Establishment. There is hereby established a Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-69 et seq. of seven members who shall be residents of the Borough of Eatontown appointed by the Mayor with the consent of the Council to serve for terms of four years from January 1 of the year of their appointment.

B. Alternate members.

[Amended by Ord. No. 3-80]

(1) There shall be four alternate members on the Board of Adjustment to be appointed by the Mayor. Alternate members shall be designated at the time of appointment by the Mayor as Alternate One, Alternate Two, Alternate Three, and Alternate Four. The term of each alternate member shall be two years, except that the first term for Alternate Three shall be one year and, upon reappointment or subsequent appointment of Alternate Three, said member shall have a two-year term thereafter.

[Amended 12-6-2006 by Ord. No. 36-2006]

(2) Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member. 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.

C. Terms.

(1) The term of the members first appointed shall be so determined that to the greatest practicable extent the expiration of such terms shall be distributed evenly over the first four years after their appointment; provided that the initial term of no member shall exceed four years. No more than two members may be appointed to the Board of Adjustment to fill four-year terms in any given year.

(2) Nothing in this chapter, however, shall be construed to affect the term of any present member of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the term for which they were appointed.

(3) No member of the Zoning Board of Adjustment may hold any elected office or position under the municipality.

D. Vacancy. A vacancy occurring otherwise than by expiration of term shall be filled for the expired term only.

E. Organization of the Board. The Zoning Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary who may be either a Board member or another municipal employee designated by the Board.

§ 89-7 Rules and regulations.

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

B. All members of the boards shall serve without compensation.

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

[Amended by Ord. No. 3-80]

D. Conflict of interest. Whenever the performance of his official duties shall require any member of the boards to deliberate, vote or act upon any matter involving his financial or personal interest, either directly or indirectly, he shall publicly disqualify himself from participating in the deliberations, absenting himself from the physical location of such deliberations, as well as from voting thereon; and he shall not participate in any discussion or decision relating thereto.

E. A condition for any approval by the boards shall be the certification by the Tax Collector that no taxes or assessments for local improvements are due or delinquent on the property for which the application is made.

F. Meetings.

(1) Regular meetings of the Zoning Board of Adjustment and the Planning Board shall be scheduled not less than once each month and shall be held as scheduled unless canceled for lack of applications for development to process. Either board may provide in its rules and regulations for special meetings, at the call of the chairman, or on the request of any two of its members, which shall be held on notice to its members and the public in accordance with the notice provisions of state and municipal regulations.

(2) No action shall be taken at any meeting without a quorum being present. All actions shall be taken by a majority vote of a quorum except as otherwise required by N.J.S.A. 40:55D-32, 40:55D-34, 40:55D-62, 40:55D-63, 40:55D-17e, 40:55D-26a and b, and 40:55D-70d. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.

[Amended by Ord. No. 3-80; Ord. No. 18-86]

(3) All regular meetings and all special meetings shall be open to the public. Notice of such meetings shall be given in accordance with the Open Public Meetings Act, Chapter 231, Laws of 1975.[1] All meetings and business conducted by and before the boards shall be in accordance with the Open Public Meetings Act, Chapter 231, Laws of 1975.

[1] Editor's Note: See N.J.S.A. 10:4-6 et seq.

G. Minutes. Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the board and of the persons appearing by attorney, the action taken by the board, 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 Administrative Secretary. Any interested party shall have the right to compel the production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party may be charged a reasonable fee for reproduction of the minutes for his use.

H. Hearings.

(1) The Planning Board and the Zoning Board of Adjustment shall hold a hearing on each application for development, or adoption or amendment of the Master Plan, within their jurisdiction. The municipal agency shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The municipal agency shall furnish a transcript, or duplicate recording in lieu thereof, on request to any interested party at his expense. If the municipal agency elects to make available a tape recording of the proceedings, the recording shall be delivered to a certified reporter of the interested party's choice, for a reasonable length of time, and upon completion of the transcription, the certified reporter shall return the recording tape directly to the Secretary of the municipal agency. The cost of the transcription shall be paid directly by the interested party to the certified reporter.

[Amended by Ord. No. 10-82]

(2) Each of the boards shall make the rules governing such hearings consistent with the provisions of N.J.S.A. 40:55D-1 et seq. 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 Secretary. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

(3) The officer presiding at any hearing or such person as he may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the "County and Municipal Investigations Law," P.L. 1953, c. 38 (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, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.

(5) Technical rules of evidence shall not be applicable to the hearing, but the board may exclude irrelevant, immaterial or unduly repetitious evidence.

(6) (Reserved)

[Amended by Ord. No. 10-82]

(7) Decisions and findings.

[Amended by Ord. No. 3-80]

(a) Each decision on any application for development shall be in writing and shall include findings of facts and legal conclusions based thereon.

(b) Failure of a motion to approve an application for development to receive the number of votes required for approval shall be deemed an action denying the application.

(c) The board may provide such written decision and findings and conclusions either on the date of the meeting at which the board takes action to grant or deny 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 the findings and conclusions of the board thereon. An action resulting from the failure of a motion to approve an application shall be memorialized by resolution as provided above, notwithstanding that the time at which such action is taken occurs within the applicable time period for rendering a decision on the application.

(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 a majority of the members of the board who voted for the action previously taken, and no other member shall vote thereon. The vote on such resolution shall be deemed to be a memorialization of an action of the board, and not to be an action of the board; except that failure to adopt such a resolution within the forty-five-day period shall result in the approval of the application for development notwithstanding any prior action taken thereon.

(e) Whenever a resolution of memorialization is adopted in accordance with this paragraph, the date of such adoption shall constitute the date of the decision for purposes of the mailings, filings and publications required by the following paragraphs of this subsection.

(8) A copy of the decision shall be mailed by the reviewing board within 10 days of the date of decision to the applicant, or, if represented, then to his attorney, without separate charge, and to all who request a copy of the decision for a reasonable fee. A copy of the decision shall also be filed by the reviewing board in the office of the Administrative Secretary. The Administrative Secretary shall furnish a copy of such file decision 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 municipality and shall make it available for public inspection at the office during reasonable hours.

(9) A brief notice of the decision shall be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the applicant. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision.

I. Notice of hearings.

(1) Contents. Notices of hearings shall state the date, time and place of the hearing, the nature of the matters to be considered and in the case of notices of application, 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 Municipal Tax Assessor's office, and the location and times at which any maps and documents for which approval are sought are available for review by the public.

(2) Responsibility. Notice of hearings shall be given by the applicant at least 10 days prior to the date of hearing.

(3) When required.

[Amended by Ord. No. 3-80]

(a) Public notice of hearing on all applications for development shall be given, except in the case of application for approval of a final plat of a major subdivision; provided, however, that the Planning Board may waive the giving of public notice in connection with minor subdivision, preliminary site plan, or final site plan approval if in its judgement such notice is not required to protect the public interest or the interest of adjacent property owners. In determining whether to grant such waiver, the Board shall consider whether the proposed subdivision or use will tend to:

[1] Increase the need for off-street parking.

[2] Generate additional vehicular traffic.

[3] Increase noise or exterior artificial lighting requirements.

[4] Increase the risk of fire, explosion, or other damage to adjacent owners.

[5] Differ markedly from the character of the existing uses in the immediate area from either an aesthetic or safety standpoint.

(b) Provided, further, however, that public notice shall always be required whenever relief is requested under § 89-11H or § 89-12D of this chapter, or whenever a variance is involved. Public notice shall be given in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough.

(4) Method of notice. Notice shall be given by:

(a) Serving a copy thereof on the property owner as shown on said current tax duplicate or his agent in charge of the property; or

(b) Mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate. Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.

(c) The notice requirement of this subsection shall be deemed satisfied by notice to a condominium association, in the case of any unit owner whose unit has a unit above or below it, or a horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. 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 on a corporation without further notice to unit owners, co-owners or homeowners on account of such common elements or areas.

[Amended by Ord. No. 3-80]

(5) Furnishing of lists. Upon the written request of any applicant the Tax Assessor shall, within seven days, make and certify a list from said current tax duplicates of the names and addresses of owners to whom the applicant is required to give notice pursuant to § 89-7I(6) of this chapter. The applicant shall be entitled to rely upon the information contained in such list and failure to give notice to any owner 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.

[Amended by Ord. No. 3-80; Ord. No. 6-86]

(6) Distribution of notice.

[Amended by Ord. No. 3-80]

(a) Whenever public notice is required a notice shall also be given:

[1] To the owners of all 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 such hearing. This includes real property owners in adjoining municipalities.

[2] To the clerk of any adjoining municipality whenever the application for development involves property located within 200 feet of said adjoining municipality.

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

[4] To the Commissioner of Transportation whenever the application for development involves property adjacent to a state highway.

[5] To the State Planning Commission whenever the application for development involves property which exceeds 150 acres or 500 dwelling units. Such notice to the Director shall include a copy of any maps or documents required to be on file prior to the hearing of the application for development.

[Amended by Ord. No. 18-86]

(b) All notices required to be served under this Subsection I shall be served either personally or by certified mail.

(7) Proof of service. The applicant shall file an affidavit of proof of service with the reviewing board holding the hearing on the application for development.

(8) Effect of mailing notice. Any notice of hearing made by certified mail shall be deemed complete upon mailing.

§ 89-8 Citizens Advisory Committee.

The Mayor may appoint one or more persons as a Citizens Advisory Committee 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. Such person or persons shall serve at the pleasure of the Mayor and without compensation.

§ 89-9 Environmental Commission.

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