Borough of Hawthorne, NJ Administration, Enforcement and Fees

Prior to the subdivision or resubdivision of land and prior to the issuance of a construction permit or certificate of occupancy for any development, an application shall be submitted to and approved by the Planning Board or the Board of Adjustment as provided by statute, for its review and approval in accordance with the requirements of this chapter.

When site plan approval is required.

Except for single- and two-family residential use and buildings and accessory uses thereto, and change in nonresidential tenancy otherwise exempted from site plan review by the Planning Board Tenancy Review Committee pursuant to § 540-33C, site plan approval shall be required for any new building, any addition to any existing building, any change of tenancy and/or occupancy for nonresidential use, any off-street parking area or alteration of such a parking area, any change in use of a building or part thereof, any building accessory to or used in connection with a permitted farming and agricultural operation and the disturbance of more than 5,000 square feet of the surface area of any lot.

Any nonresidential change in tenancy, except as otherwise exempted under § 540-33B(2)(a), shall require Planning Board review. All nonresidential changes in tenancy shall be referred to the Planning Board Tenancy Review Committee created pursuant to § 540-33C(1).

An applicant may apply for minor site plan approval to the Planning Board. In order to qualify as a minor site plan application, the minor site plan must satisfy the following criteria:

It involves only a change in use or a change in tenancy of an existing building or is the first use in a new building having received site plan approval and the use is permitted in the zone or involves the tenancy for a building granted prior site plan approval but for which tenancy was not established at the time of approval.

The use does not involve the handling or storage of hazardous materials as defined in N.J.A.C. 7:1G-1 to 7:1G-5.

[3]

There is no outstanding health, fire, building code, zoning or traffic safety violations.

[4]

There are no outstanding taxes or assessments payable.

[5]

There are no changes to the exterior design or appearance of a building.

[6]

No variances are created or existing nonconforming conditions are expanded.

(d)

Minor site plan applications may also be referred to one or more of the following Borough employees or their approved designees for recommendation:

Zoning Officer.

Construction Code Official.

[3]

Traffic Safety Officer.

[4]

Borough Engineer.

[5]

Water and Sewer Department.

[6]

Health Officer.

[7]

Fire Official.

[8]

Borough Planner.

Planning Board Tenancy Review Committee.

There is hereby created a subcommittee of the Planning Board hereinafter referred to as the "Tenancy Review Committee" (Committee). The Committee shall consist of the Mayor as Class I member, the Council Representative as Class III Member and one Class IV Regular Member to be appointed by the Planning Board Chairman. The Committee shall review all changes in nonresidential tenancy applications to determine whether minor or major site plan approval is required prior to the issuance of a zoning permit and certificate of occupancy.

A change in nonresidential tenancy may be approved by the Committee as being exempt from minor or major site plan approval, provided that all of the following requirements are satisfied:

The Committee determines the change in tenancy is substantially equivalent to what existed prior to the tenancy application;

Does not result in a physical expansion of the building footprint or changes to the existing building other than facade improvements and signage in conformance with Code requirements;

Does not result in any physical changes to the property other than routine maintenance of existing site conditions; and

(d)

Does not result in an increase in parking demand that cannot be accommodated on the subject property.

Following approval of a minor site plan, and unless otherwise exempted from site plan approval pursuant to this chapter, the Zoning Officer shall issue a zoning permit authorizing the occupancy or continued occupancy, as the case may be, of the premises. No use shall commence or continue without the issuance of said zoning permit.

Where a site plan has been duly approved by the Planning Board, but where the specific use or uses of the building are not known at the time of the site plan approval, such as in the case of a speculative building, no certificate of occupancy for any part of the building shall be issued until a site plan for the specific use is approved; provided, however, that the Planning Board may review the specific use or occupancy as a minor site plan, provided the application satisfies the criteria for minor site plan as established in § 540-33B(2)(c) above.

§ 540-34 Enforcement.

The rules, regulations and standards contained in this chapter shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Borough. Any action taken by the Borough under the terms of this chapter shall give primary consideration to the purposes and provisions of this chapter and to the welfare of the entire community. Moreover, if an applicant or his/her agent can clearly demonstrate that, because of the peculiar conditions pertaining to his/her land, the literal enforcement of one or more of these regulations is impractical or will exact undue hardship, the appropriate municipal agency may permit such exceptions or exceptions as may be reasonable and within the general purpose and intent of the rules, regulations and standards established by this chapter.

It shall be the duty of the Zoning Officer to enforce the provisions of this chapter and, in so doing, to inspect periodically the structures and land in the Borough, to investigate violations of the chapter coming to his/her attention, to serve notice upon property owners, to abate any condition found to exist in violation of any provision(s) of this chapter, to sign complaints where justified, and to cooperate with other Borough officials in the prosecution of violators. The enumeration herein of the duties of the Construction Code Officer and Zoning Officer shall not mean that other officials and employees shall be relieved of their obligation to enforce this chapter. The Construction Code Officer, Zoning Officer, Borough Engineer, or other Borough employees authorized by the Borough shall have the right to inspect any lot or building at reasonable times for the purpose of investigating possible violations of this chapter.

If the Zoning Officer finds any substantial deviation from any approved plans, he/she shall notify the permittee in writing of the deviation. The Zoning Officer and the Borough may take such action as is provided in this chapter to enforce the requirements of this chapter.

§ 540-35 Zoning permits; building permits; certificates of occupancy.

Zoning permits.

Purpose. The zoning permit looks to the location and use of the building considering the requirements of this chapter, and certifies that such location and use is permitted, or that it exists as a nonconforming use and/or nonconforming structure or is permitted by the terms of a variance. To ensure compliance with the provisions of this chapter, no person shall erect, alter or convert any structure or building or part thereof or alter the use of any land subsequent to the adoption of this chapter, until a zoning permit has been issued by the Zoning Officer.

Application for zoning permit. All zoning permit applications shall be made in writing by the owner or his/her authorized agent and shall include a statement to the use or intended use and shall be accompanied by a plan of the plot showing thereon the exact size, shape and location of all existing and proposed structures and such other information as may be necessary to provide for the enforcement of this chapter. The zoning permits shall be granted or denied within 10 business days from the date that a written application is filed with the Zoning Officer.

Issuance of zoning permit. Zoning permits shall be secured from the Zoning Officer prior to construction, erection or alteration of any structure or part of a structure or use of a structure or land. It shall be the duty of the Zoning Officer to issue a zoning permit, provided that person is satisfied that the proposed use conforms with all requirements of this chapter. It is the applicant's responsibility that all other reviews and actions, if any, called for in this chapter or any other Borough ordinance have been complied with and all necessary approvals secured therefor.

Denial of zoning permit. When the Zoning Officer is not satisfied that the applicant's proposed development will meet the requirements of this chapter, the Zoning Officer shall refuse to issue a zoning permit. When an application for a zoning permit is denied, it is the duty of the Zoning Officer to specify what sections of the application are not in conformance with this chapter. The applicant may appeal to the Zoning Board of Adjustment.

Records of zoning permits. It shall be the duty of the Zoning Officer to keep a record of all applications for zoning permits issued, together with a notation of all special conditions involved. The Zoning Officer shall prepare a monthly report for the Borough Council, Planning Board, Zoning Board of Adjustment, and Tax Assessor, summarizing for the period since his/her previous report all zoning permits issued by him/her and all complaints of violations and the action taken by him/her consequent thereon.

Building permits.

No building or structure or part thereof shall be erected, constructed, reconstructed, structurally altered or moved until a building permit has been procured from the Construction Code Officer. All applications for building permits shall be filed in accordance with the Uniform Construction Code.[1]

Editor's Note: See Ch. 185, Construction Codes, Uniform.

No building permit shall be issued for the erection, construction, reconstruction, structural alteration or moving of any building or structure or part thereof until the Zoning Officer has certified that the plans and intended use indicate that such building or structure is designed and intended to conform in all respects to the provisions of this chapter. The Zoning Officer's certification shall be considered a prior approval required prior to the issuance of a building permit by the Construction Official.

A record of all applications, plot plans and permits shall be kept by the Construction Department pursuant to the New Jersey Uniform Construction Code.[2]

Editor's Note: See Ch. 185, Construction Codes, Uniform.

Before a building permit is issued for a new building or for an extension or relocation of an existing building or before a permit is issued for the installation of any improvements required by this chapter or by a plot plan approved by the Planning Board, a licensed engineer or land surveyor shall visibly locate said building or improvements, together with the lot lines of the intended site for inspection by the Zoning Officer. The Zoning Officer shall ascertain that all requirements of this chapter and/or the approved plot plan are complied with before the issuance of a building permit.

Following construction of the foundation of a new building and prior to the start of framing, the applicant shall submit an accurate foundation survey in accordance with N.J.A.C. 13:40-5 in triplicate to the Zoning Officer for his/her review for compliance with this chapter. This survey shall show the dimensions of the new foundation, the distance from front and both side property lines of the two foundation corners nearest to these property lines and the elevation of the top of the foundation. If the building will be served by an individual sewage disposal system, and/or an individual water system (well), the Zoning Officer shall forward the foundation survey to the Board of Health for its review and approval in order to determine the proper relationship between the elevations of the building and the disposal system and ensure adequate gravity flow into the system. If a disposal field is to be built up by fill to more than two feet, a grading plan as required by the New Jersey Department of Environmental Protection Standards for the Construction of Individual Subsurface Sewage Disposal Systems shall first be reviewed and approved by the Borough Engineer, who may establish such conditions as he deems appropriate. Following approval of the foundation survey by the Zoning Officer and approvals by the Board of Health and the Borough Engineer as may be required, the Zoning Officer may authorize the completion of the building.

Certificates of occupancy.

No land shall be occupied or used and no building hereafter erected or altered shall be occupied or used, in whole or in part, for any purpose whatsoever until a certificate of occupancy shall have been issued.

A certificate of occupancy shall not be issued until the Zoning Officer has certified that the land, use, building, structure, or premises complies with all provisions of this chapter and all other applicable Borough and state requirements and, if involved, with such conditions as have been imposed by any required site plan approval pursuant to this chapter. The Zoning Officer's certification shall be considered a prior approval required prior to the issuance of a certificate of occupancy by the Construction Official. When issued, the certificate of occupancy shall state that such compliance has been achieved.

The certificate of occupancy shall specify the use of land or building, and any circumstances or conditions imposed by any public agency, code or regulation. Any change in use, including a change from one permitted use to another kind of permitted use in the same zone, as well as any change in occupancy or tenancy in the nonresidential zones, will be treated as a new use, and a new certificate of occupancy shall be required. Prior to the issuance of a certificate of occupancy from said changes in use, all provisions of this chapter shall be complied with in the same manner as if the new use were a new structure or a new use of land, including site plan review requirements, except for those improvements or uses exempted from site plan approval pursuant to § 540-33B(2)(a), in which case, the certificate of occupancy may be issued administratively without Planning Board review.

A certificate of occupancy shall be issued within 10 business days after receipt of an application for the certificate and after the building has been completed in accordance with § 540-35B above, but not prior to any required authorization by the Planning Board in connection with site plan approval pursuant to this chapter. A record of all certificates shall be kept on file in the office of the Construction Department, and copies shall be furnished upon request to any person having a proprietary or leasehold interest in the building or land affected.

Where a preliminary site plan, as required by this chapter, has been duly reviewed and approved by the Planning Board, the erection or alteration of the building shall not be deemed to be completed until all the requirements of the approved site plan are met.

(6)

No certificate of occupancy shall be issued for any building or structure unless and until there shall be a street sign first installed on the street on which such building or structure is located.

(7)

In the case of a site plan for multifamily housing, a certificate of occupancy for any dwelling unit shall not be issued until all safety-related improvements have been installed pursuant to § 540-35B.

§ 540-36 Stop orders and permit revocations.

Stop orders. In the event that a permittee shall fail to comply with any condition or regulation or provisions of an approved plan, the Borough Engineer, Zoning Officer, and/or Construction Code Officer may issue a stop order on all construction work within the area encompassed by the approved plan and which order may include requirements for the prompt correction of adverse conditions. Thereafter, no construction work of any type shall be performed within the area of the approved plan except such work as is in accordance with the requirements of the Borough Official as set forth in said order or in accordance with the approved plan.

Revocation of permits or certificates of occupancy.

In the event of a failure to comply with any provisions or requirements of this chapter, the Borough Construction Official or their designee may revoke any building or construction permit for any property upon which such noncompliance occurs or for any property affected by such noncompliance. The Borough may also seek to enjoin the violation, or take such other steps as permitted by law.

In the event of a failure to comply with any condition of final site plan or minor site plan approval having been granted by the Planning Board, the Construction Code Official, on his/her initiative, may revoke the building permit, construction permit or certificate of occupancy, as the case may be, and seek to enjoin the violation, or such other steps as permitted by law. In addition, the Borough Zoning Officer or Borough Engineer may also, on his/her initiative, seek to enjoin the violation, or take other such steps as permitted by law to enforce requirements of this chapter or conditions of approvals attached to final and minor site plan approvals.

§ 540-37 Violations and penalties.

Any person who violates any of the provisions of this chapter or who fails to comply with any of the requirements thereof or who erects, raises, moves, extends, enlarges, alters or demolishes any structure in violation of any detailed statement or plan submitted hereunder, or who puts into use any lot or premises in violation of any detailed statement or plans submitted hereunder or who refuses reasonable opportunity to inspect any premises, shall be subject to such penalties as are provided for in Chapter 1, Article II, General Penalty.

The owner of any building or structure, lot or land or part thereof where anything in violation of this chapter shall be placed or shall exist and any architect, builder, contractor, agent, person or corporation employed in connection therewith and who assists in the commission of such violation shall each be guilty of a separate misdemeanor and, upon conviction thereof, shall each be liable to the penalty specified in Subsection A of this section.

If, before final subdivision approval has been granted, any person as owner or agent transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision for which municipal approval is required, such persons shall be subject to a penalty not to exceed $2,000, and each lot disposition so made may be deemed a separate violation.

In addition, the Borough may institute and maintain a civil action:

For injunctive relief;

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.

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.

§ 540-38 Fees.

There is hereby established, in connection with various applications for development and other matters which fees are the subjects of this chapter, a schedule of fees, which fees shall be paid by the applicant. Said schedule of fees is included in Chapter 220, Fees, of the Borough Code of Ordinances.

Development application fees and related charges. The developer shall, at the time of filing a submission, pay the nonrefundable fee specified in Chapter 220, Fees, to the Administrative Officer. Proposals involving more than one use shall pay a fee equaling the sum of the fees for the component elements of the plat. Proposals requiring a combination of approvals, such as subdivision, site plan and/or a variance, shall pay a fee equal to the sum of the fee for each element.

Technical review escrow deposits.

In addition to the filing fees or any other fees required in this article, an applicant shall file with the Administrative Officer an escrow deposit fee of adequate funds to cover the costs of professional services in connection with the review of an application for development by planners, engineers, attorneys and other professional and/or experts whose services are deemed necessary with respect to processing the application by the approving authority in order to assure compliance with the provisions of this chapter. Technical review fees shall be calculated in accordance with the actual time required for review at rates set forth in a schedule of professional fees established each year by resolution of the Planning Board maintained in the office of the Borough Clerk and Administrative Officer for public inspection. The administration of technical review escrow deposits and payments made to professionals from said deposits shall be in accordance with the provisions of N.J.S.A. 40:55D-53.1 and Section 13 of P.L. 1991, c. 256.[1]

Editor's Note: See N.J.S.A. 40:55D-53.2.

At the time of filing an application for development, the applicant shall pay to the Borough an initial deposit for technical review fees in accordance with Chapter 220, Fees. The amount shown represents only the initial deposit. An applicant will be required to deposit additional funds when professional costs necessitate. In addition, deposit of escrow amounts may be required even when an initial deposit is not required if professional services become warranted. The amount of such fees shall be determined by the Administrative Officer and may include, but are not necessarily limited to, the following:

Preapplication conferences.

Planning Board meetings.

Special meetings and other extraordinary services required by an application.

An application shall not be deemed complete until the application fee and initial escrow deposit have been paid. In the event a project is of a nature that is not expressly included in one of the categories in Chapter 220, Fees, the amount of the fee and deposit shall be determined by the Administrative Officer applying the standard applicable to other applications most closely resembling the project. Also, additional funds may be required when the original amount is depleted by 60% or more and the application is still in process. The additional amount shall be determined by the Administrative Officer.

Inspection fees. The developer shall reimburse the Borough for all reasonable inspection fees incurred by the Borough Engineer for the inspection of improvements, provided that the Borough may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the amount set forth in Chapter 220, Fees, which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4 and which shall be subject to the following conditions:

Fees for engineering inspections during and after construction, and during the maintenance period, shall be deposited in cash, or by certified check, with the Borough, prior to the issuance of a construction permit by the Borough Engineer.

In the event that construction proceeds at a very slow rate, outside of the time frame as established in the developer's agreement, and the work is not pursued in a diligent manner, resulting in an unreasonable number of engineering inspections or, in the event of faulty installations, inferior materials or workmanship causing an unreasonable number of engineering inspections, an additional fee shall be paid by the applicant to cover the engineering cost of such additional inspections.

No remaining portion of an engineering inspection fee, if any, shall be returned to a developer or his/her successor until the expiration of the maintenance period.

Exemptions. All political entities and Borough entities shall be exempt from payment of any fee under this chapter including review escrow deposits. All charitable, philanthropic, fraternal and religious nonprofit organizations holding a tax-exempt status under the Federal Internal Revenue Code of 1954 [26 U.S.C. § 501(c) or (d)] shall be exempt from any application charge established under this chapter. The aforementioned organizations shall, however, be required to make all review fee escrow deposits established under this chapter.

Disputes. An applicant shall notify in writing the governing body with copies to the Borough's Chief Financial Officer (CFO), the approving authority and the professional whenever the applicant disputes the charges made by a professional for service rendered to the municipality in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the provisions of P.L. 1975, c. 291.[2] The governing body, or its designee, shall within a reasonable time period attempt to mediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals. The appeals process shall be as set forth in N.J.S.A. 40:55D-53.2a.

Editor's Note: See N.J.S.A. 40:55D-1 et seq.

§ 540-39 Improvements; performance and maintenance guarantees.

Before filing a final subdivision plat or recording a minor subdivision deed or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to Subsection d of N.J.S.A. 40:55D-65, a developer shall furnish a performance guarantee, and provide for a maintenance guarantee in accordance with the provisions of this subsection.

The developer shall furnish a performance guarantee in favor of the Borough 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 Borough Engineer, according to the method of calculation set forth in Section 15 of P.L. 1991. C. 256 (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 and required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.; repealed by Section 2 of P.L. 2011, c. 217) or N.J.S.A. 46:26B-8 through N.J.S.A. 46:26B-8, water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements.

The performance guarantee shall be in the Borough's prescribed form of performance bond on which the subdivider shall be principal, and secured either by a bonding or surety company approved by the Council or by a certified bank or cashier's check, the proceeds of which shall be returnable to the subdivider without interest after full compliance by the subdivider with all of the requirements of this chapter and the developer's agreement.

The performance guarantee shall be approved by the Borough Attorney as to form, sufficiency and execution. Such performance guarantee shall run for a period to be fixed by the Planning Board but in no case for a term of more than three years. However, with the consent of the owner and of the surety, if there be one, the Council may, by resolution, extend the term of such performance guarantee for an additional period or periods not to exceed, in the aggregate, three years. 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, as determined as of the time of the passage of the resolution. The amount of the performance guarantee may be reduced by the Council by resolution when portions of the required improvements have been installed.

A successor developer must furnish a replacement performance guarantee, as a condition to the approval of a permit update under the State Uniform Construction Code,[1] for the purpose of updating the name and address of the owner of property on a construction permit.

Editor's Note: See Ch. 185, Construction Codes, Uniform.

The Borough 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.

(6)

A performance guarantee shall include, within an approved phase or section of a development privately owned perimeter buffer landscaping, as required by Borough ordinance or imposed as a condition of approval.

(7)

At the developer's option, a separate performance guarantee may be posted for the privately owned perimeter buffer landscaping.

(8)

In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a "temporary certificate of occupancy guarantee," in favor of the Borough 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 posting of a "temporary certificate of occupancy guarantee," all sums remaining under a performance guarantee, required pursuant to § 540-39A(1), 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 Zoning Officer, Borough Engineer, or other municipal official designated by ordinance. At no time may the Borough 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 Zoning Officer, Borough Engineer, or other municipal official designated by ordinance 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.

(9)

A developer shall furnish to the Borough a "safety and stabilization guarantee," in favor of the Borough. At the developer's option, a "safety and stabilization guarantee" may be furnished either as a separate guarantee or as a line item of the performance guarantee. A safety and stabilization guarantee shall be available to the Borough solely 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, only in the circumstance that:

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

Work has not recommenced within 30 days following the provision of written notice by the Borough to the developer of the Borough's intent to claim payment under the guarantee. The Borough 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. The Borough shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.

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.

(d)

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.

The Borough shall release a 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.

[3]

The Borough shall release a safety and stabilization guarantee upon the Borough 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.

The developer shall post with the Borough, prior to the release of a performance guarantee required pursuant to § 540-39A(1) through (8), a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.

If required, the developer shall post with the Borough, upon the inspection and issuance of final approval of the following private site improvements by the Borough 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 outflow pipes and structures of the stormwater management system, if any, which cost shall be determined according to the method of calculation set forth in Section 15 of P.L. 1991, c. 256 (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.

In the event that other governmental agencies or public utilities automatically 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 Borough for such utilities or 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 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 Borough Engineer according to the method of calculation set forth in Section 15 of P.L. 1991. c. 256 (N.J.S.A. 40:55D-53.4) as of the time of the passage of the resolution.

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 Borough for the reasonable cost of the improvements not completed or corrected and the Borough may either prior to or after the receipt of the proceeds thereof complete such improvements.

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 Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to subsection a. of this section, 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 Borough 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 Borough 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.

The list prepared by the Borough 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 Borough 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 Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section.

The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Borough 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 Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough 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.

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 Borough Engineer and appended to the performance guarantee pursuant to § 540-39A(1) of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the Borough 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 Borough below 30%.

If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to § 540-39F(1) within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough 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.

If the governing body fails to approve or reject the bonded improvements determined by the Borough 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 Borough 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 Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

In the event that the obligor has made a cash deposit with the Borough 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 Borough may retain cash equal to the amount of the remaining safety and stabilization guarantee.

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.

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 Borough Engineer.

The obligor shall reimburse the Borough for reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements; which fees shall not exceed the sum of the amounts set forth in Subsection N(1) and (2) of this section. The Borough may require the developer to post the inspection fees in escrow in an amount:

Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements that are subject to a performance guarantee under Subsection A(1), Subsection A(7), or both Subsection A(1) and Subsection A(7) of § 540-39; and

Not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee under § 540-39A(1), which cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).

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 Borough Engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees.

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 Borough Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.

If the Borough determines that the amount in escrow for the payment of inspection fees, as calculated pursuant § 540-39A, is insufficient to cover the cost of additional required inspections, the Borough may require the developer to deposit additional funds in escrow, provided that the Borough delivers to the developer a written inspection escrow deposit request, signed by the Borough 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.

In the event that final approval is by stages or sections of development pursuant to Subsection a of Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.

To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to § 540-39A(1), 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 Borough Engineer.

§ 540-40 Developer's agreement.

Within 90 days of the adoption of a resolution granting final subdivision or final site plan approval and prior to the execution of the final subdivision plat or signing of a final site plan by the Borough, there shall be executed and delivered to the Borough Attorney an agreement between the developer and the Borough incorporating all the terms and conditions of final approval. The agreement shall be drawn by the Borough Attorney and shall be executed by the owner and developer of the subdivision.

The agreement must contain the following provision: "It is hereby understood and agreed that in the event the principal shall default in the performance of its obligation under this agreement, then the Borough shall perform said principal's obligation at the option of the Borough Council."

Implicit in every preliminary approval and part of each such agreement in connection with final approval shall be the agreement of the developer to:

Procure all necessary drainage easements of any nature whatsoever.

Make such revisions in the drainage plan as may be reasonably required before or during construction by the Borough Engineer. All drainage problems shall be resolved to the satisfaction of the Borough Engineer prior to the issuance of the final certificate of occupancy in the subdivision or site plan.

Make changes to the approval and/or plan in the interest of public health and safety.

In the event that all of the improvements have not been installed within the time period set forth in the developer's agreement, the developer may request, in writing, to the Borough Council, a one-year extension of the time in which to complete all improvements. No more than two such extensions will be considered unless the developer's agreement shall be accompanied by an application fee of $300 to cover the engineering and legal fees associated with the processing of the application.

§ 540-41 Off-tract improvements.

Construction or contribution required. Pursuant to the powers established in N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-42, construction of or contributions for off-tract water, sewer, drainage and street improvements may be required in accordance with the following criteria:

Improvements to be constructed at the sole expense of the applicant. In cases where reasonable and necessary need for an off-tract improvement or improvements is necessitated or required by the proposed development application, and where no other property owners receive a special benefit thereby, the Planning Board may require the applicant, as a condition of subdivision approval, at the applicant's sole expense, to provide for and construct such improvements as if such were on-tract improvements in the manner provided hereafter and as otherwise provided by law.

Contributions by developer toward required off-tract improvements:

In cases where the need for any off-tract improvement is necessitated by the proposed development application, and where the Planning Board determines that properties outside the development will also be benefited by the improvements, the Planning Board shall utilize the criteria set forth in § 540-41C below in determining the developer's proportionate share of such improvements. In addition, the Board shall be guided by the rules and regulations specified in this chapter and the Master Plan. The Board may also be guided by counsel from the Board Attorney, Engineer, Planning Consultant and other qualified experts and municipal officials relative to the subject matter.

In the event that the Board determines that one or more improvements constitute an off-tract improvement, the Board shall notify the Borough Council of the same specifying the Borough's recommendation relative to the estimated cost of same, the applicant's prorated share of the cost, and possible methods or means to implement same, including but not limited to performance and maintenance guarantees, case contributions, development agreements and other forms of surety.

The Board shall not grant final approval on the subdivision until all aspects of such conditions have been mutually agreed upon by both the applicant and the Borough Council and a written resolution to that effect by the Borough Council has been transmitted to the Board.

Methods of implementation.

Performance and maintenance guarantees. Where a performance or maintenance guarantee or other surety is required in connection with an off-tract improvement, the applicant shall be required to follow the same procedures and requirements as specified in this chapter for other improvements.

Development agreement. Where a development agreement is required governing off-tract improvements or other conditions as may be required by this chapter or by the Board, said agreement shall be approved as to form, sufficiency and execution by the Board Attorney and Borough Attorney. Said agreement shall specify the amount of cash contributions, if any, the method of payment, the relative timing of such payment, and the obligation or obligations to be undertaken by the Borough of Hawthorne.

Cash contributions, when not required. Cash contributions for off-tract improvements shall not be required under the following conditions:

Where another county or state agency has jurisdiction over the subject improvement and requires cash contribution, guarantee or other surety of the applicant in lieu of such conditions imposed by the Borough of Hawthorne;

Where a benefit assessment or other similar tax levy is imposed upon the applicant for the off-site improvement provided; or

Where the applicant, where legally permissible, can undertake the improvements in lieu of the municipality, subject to standards and other conditions as may be imposed by the Borough of Hawthorne.

Cash contributions, method of payment. Where a cash contribution is required by this chapter, said contribution shall be deposited with the Borough Chief Financial Officer with a copy of the applicant's transmittal letter forwarded to the Borough Council, the Borough Engineer and the Board. Any and all monies received by the Chief Financial Officer shall be deposited in an escrow account for the purpose of undertaking the improvements specified. Where such improvements are not undertaken, or initiated for a period of 10 years from the posting of the funds, the funds may be retained by the Borough and may be used for general municipal purposes, but in such event, neither the applicant nor any of his heirs, executors, administrators, or grantors shall be liable to the Borough for any assessment for the purpose of installing any of the improvements for which said cash contribution was made.

Pro rata formula for determining applicant's share of off-tract improvements. Where an off-tract improvement is required, the following criteria shall be utilized in determining the proportionate share of such improvement to the applicant:

Street widening, alignment, corrections, channelization of intersections, construction of barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements not covered elsewhere and the construction of new streets and other similar street or traffic improvements: The applicant's proportionate share shall be in the ratio of the estimated peak-hour traffic capacity of the present facility, and the estimated peak-hour traffic generated by the proposal development. The ratio thus calculated shall be increased by 10% for contingencies.

Water distribution facilities including the installation of new water mains, the extension of existing water mains, the relocation of such facilities and the installation of other appurtenances associated therewith: The applicant's proportionate cost shall be in the ratio of the estimated daily use of water from the property or properties in gallons to the sum of the deficiency in gallons per day for the existing system or subsystem and the estimated daily use of water for the proposed development. The ratio thus calculated shall be increased by 10% for contingencies.

Sanitary sewage distribution facilities, including the installation, relocation or replacement of collector and interceptor sewers and the installation, relocation or replacement of other appurtenances associated therewith: The applicant's proportionate cost shall be in the ratio of the estimated daily flow in gallons to the sum of the present deficient capacity for the existing system or subsystem and the estimated daily flow from the proposed project or development. In the case where the peak flow for the proposed development may occur during the peak flow period for the existing system, the ratio shall be the estimated peak flow rate from the proposed development in gallons per minutes to the sum of the present peak flow deficiency in the existing system or subsystem and the estimated peak flow rate from the proposed development. The greater of the two ratios thus calculated shall be increased by 10% for the contingencies and shall be the ratio used to determine the cost to the applicant.

Stormwater and drainage improvements, including installation, relocation or replacement of transmission lines, culverts, catch basins and the installation, relocation or replacement of other appurtenances associated therewith: The applicant's proportionate cost shall be in the ratio of the estimated peak surfaces runoff as proposed to be delivered into the existing system measured in cubic feet per second deficient for the existing system and the estimated peak flow as proposed to be delivered. The ratio thus calculated shall be increased by 10% for contingencies. The applicant's engineer shall compute the drainage basin area and the area of the development and the percent of the total drainage basin area occupied by the development. Where no drainage system exists, which will receive the flow of the surface water from the applicant's development, the applicant shall furnish all drainage rights-of-way deemed to be necessary by the Board.