In accordance with the Municipal Land Use Law, N.J.S.A. 40:55D-1
et seq., the Borough of Mantoloking, being a Borough with a population
of less than fifteen thousand (15,000) people, has instituted a nine
(9) member Planning Board to exercise, to the same extent and subject
to the same restrictions, all the powers of a Board of Adjustment.
A.
Establishment.
The Planning Board of the Borough of Mantoloking shall consist of
nine (9) members which for convenience in designating the manner of
appointment, shall have the four (4) following classes:
(1)
Class
I. The Mayor of the Borough of Mantoloking, or the Mayor's designee
in the absence of the Mayor;
(2)
Class
II. One of the officials of the municipality other than a member of
the Borough Council, to be appointed by the Mayor;
(3)
Class
III. A member of the Borough Council, to be appointed by it; and
(4)
Class
IV. Six (6) other citizens of the Borough of Mantoloking, to be appointed
by the Mayor. The members of Class IV shall hold no other municipal
office, position or employment except that one (1) member may also
hold a seat on the Board of Education.
(5)
All
members of the Planning Board of the Borough of Mantoloking shall
be municipal residents.
B.
Terms.
(1)
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 (1) year or terminate at the completion
of their respective terms of office, whichever occurs first.
(2)
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 term of office as a member of the environmental
commission, whichever occurs first. The term of a Class IV member
who is also a member of the board of adjustment or board of 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.
The Class IV term of each such member shall be four years.
(3)
Alternate
members. Alternate members of the Planning Board shall be appointed
by the Mayor and shall meet the qualifications for Class IV members
of nine (9) member Planning Boards. The Mayor may, in the exercise
of his or her discretion, appoint up to four (4) alternate members
of the Planning Board. Alternate members shall be designated at the
time of appointment by the Mayor as "Alternate No. 1", "Alternate
No. 2", etc. The terms of the alternate members shall be for two (2)
years, except that the terms of the alternate members shall be such
that the term of not more than one (1) alternate member shall expire
in any one (1) year; provided, however, that in no instance shall
the terms of the alternate members first appointed exceed two (2)
years. Alternate members of the Planning Board of the Borough of Mantoloking
shall be municipal residents.
C.
Participation
of alternate members. Alternate members may participate in all matters
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. Participation of alternate members shall not be
deemed to increase the size of the Planning Board.
D.
Conflicts.
No member of the Planning Board shall be permitted to act on any matter
in which he or she has, either directly or indirectly, any personal
or financial interest. In the event that the Planning Board shall
lack a quorum of members eligible to act upon an application because
of either direct or indirect personal or financial interest therein,
alternate members of the Planning Board will be called upon according
to number.
E.
Vacancies.
If a vacancy of any class shall occur in a manner other than by expiration
of term, it shall be filled by appointment for the unexpired term.
F.
Removal.
Any member other than a Class I member, after a public hearing if
he or she requests one, may be removed by the Borough Council for
cause.
G.
Advisory
Committee. The Mayor may appoint one (1) 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 by the Board.
H.
Organization
of Planning Board. The Planning Board shall elect a Chairman and Vice-Chairman
from the members of Class IV and shall elect a Secretary who is either
a member or alternate member of the Planning Board or a municipal
employee designated by it. An alternate member of the Planning Board
shall not serve as Chairman or Vice-Chairman of the Planning Board.
The Planning Board may employ, or contract for, and fix the compensation
of legal counsel (other than the Municipal Attorney), experts, and
other staff, including but not limited to a Board Secretary, and services
utilizing funds appropriated by the Borough Council for its use. The
costs of such counsel, experts and other assistance shall not exceed
the amounts appropriated to the Planning Board by the Borough Council,
unless reimbursable by an applicant. The Borough Council shall make
provision in its budget and shall appropriate funds for the expenses
of the Planning Board.
I.
Powers
and duties of the Planning Board. The Planning Board shall adopt such
rules and regulations as may be necessary to carry into effect the
provisions and purposes of this chapter. In the issuance of 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. The Planning Board shall have the following
powers and duties:
(1)
To
make and adopt and, from time to time, amend a Master Plan for the
physical development of the municipality, including any areas outside
its boundaries which, in the Board's judgment, bear essential relation
to the planning of the municipality, in accordance with the provisions
of N.J.S.A. 40:55D-28.
(2)
To
administer site plan and land subdivision review in accordance with
the provisions of this chapter and N.J.S.A. 40:55D-37 through 40:55D-59.
(3)
To
grant exceptions from certain requirements for subdivision and site
plan approval pursuant to N.J.S.A. 40:55D-51.
(4)
Informal
review. At the request of an applicant, the Planning Board may grant
an informal review of a concept plan for a development for which the
applicant intends to prepare and submit an application for development.
The amount of any fees for such an informal review shall be a credit
toward fees for review of the application for development. The applicant
shall not be bound by any concept plan for which review is requested,
and the Planning Board shall not be bound by any such review.
(5)
To
consider and report to the Borough Council within thirty-five (35)
days after referral to the Board as to any proposed development regulation
submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26(a)
and also to pass upon other matters specifically referred to the Planning
Board by the Borough Council pursuant to the provisions of N.J.S.A.
40:55D-26(b).
(6)
To
participate in the preparation and review of programs or plans required
by State or Federal law or regulations.
(7)
To
assemble data on a continuing basis as part of a continuing planning
process.
(8)
To
perform such other advisory duties as are assigned to it by ordinance
or resolution of the Borough Council for the aid and assistance of
the Borough Council or for other agencies or officers, including,
but not limited to, preparation of a capital improvements program
pursuant to N.J.S.A. 40:55D-29.
(9)
To
exercise the powers of a Zoning Board of Adjustment,
J.
Meetings.
(1)
Meetings
of the Planning Board shall be scheduled no less often than once a
month, and any meeting so scheduled shall be heard as scheduled unless
canceled 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 (2) Board members, which meetings shall be held
on notice to the Board's members and to the public in accordance with
all applicable legal requirements.
(3)
No
action shall be taken at any meeting without a quorum being present.
(4)
All
actions shall be taken by majority vote of a quorum except as otherwise
required by any provision of N.J.S.A. 40:55D-1 et seq.
(5)
All
regular meetings and all special meetings shall be open to the public.
Notice of all such meetings shall be given in accordance with the
requirements of the Open Public Meetings Law, N.J.S.A. 10:4-6 et seq.
An executive session for the purpose of discussing and studying any
matters to come before the Planning Board shall not be deemed a regular
or special meeting.
K.
Minutes.
The Secretary appointed by the Planning Board shall keep minutes of
every regular or special meeting which 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; and the findings,
if any, and reasons therefor made by the Board.
L.
Hearings.
(1)
Rules.
Unless permitted to waive notice and public hearing by the provisions
of this chapter or other applicable law, the Planning Board shall
hold a hearing on each application for development submitted for its
consideration and shall make rules governing conduct of applicants
and others before the Planning Board.
(2)
Filing
of documents. Any maps and documents for which approval is sought
at a hearing shall be on file at the Zoning Office in the Borough
Hall and available for public inspection during regular business hours.
(3)
Oaths.
The officer presiding at the hearing or such person as he or she may
designate shall have the power to administer oaths and to 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)
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)
Evidence.
Technical rules of evidence shall not be applicable to the hearing,
but the Board may exclude irrelevant, immaterial or unduly repetitious
evidence.
(6)
Records.
The Planning Board shall provide for the verbatim recording of the
proceedings by either stenographic, mechanical or electronic means.
The Planning Board shall furnish a transcript or duplicate recording
in lieu thereof on request to any interested party at his or her expense.
The fee charged shall not exceed the actual cost of preparing the
transcript or recording. Transcripts shall be certified in writing
by the transcriber to be accurate.
M.
Notice
of hearings. Notice shall be required for all site plan and subdivision
applications. Whenever public notice of a hearing is required on an
application for development, the applicant shall give notice thereof
at least ten (10) days prior to the date of the hearing in accordance
with the following requirements:
(1)
Public
notice of a hearing on an application for development shall be given
for all of the following:
(a)
Appeal of the determination of the Zoning Officer;
(b)
Variance;
(c)
Directive for issuance of a building permit; or
(d)
Preliminary or final subdivision plats or site plan approval or extension
of such approval or extension of statutory guarantee;
(e)
Extension of approvals for five (5) or more years under N.J.S.A.
40:55D-49 and N.J.S.A. 40:55D-52;
(f)
Modification or elimination of a significant condition or conditions
in a memorializing resolution in any situation wherein the application
for development for which the memorializing resolution is proposed
for adoption required public notice; or
(g)
Requests for interpretation of the zoning map or ordinance or for
decisions upon other special questions upon which the Planning Board
is authorized to pass.
(2)
Public
notice shall be given by publication in the official newspaper of
the Borough, if there is one, or in a newspaper of general circulation
in the Borough and shall conform with N.J.S.A. 40:55D-11 as to content.
(3)
Notice
of hearing requiring public notice pursuant to this chapter shall
be given by certified mail to the current owners of the tax lot or
lots, located within two hundred (200) feet in all directions of the
property which is the subject of such hearing and whether located
within or without the municipality in which applicant's land is located.
N.
Time limits
for approvals.
(1)
Preliminary
site plan approval. Upon the submission to the Zoning Officer of a
complete application of a site plan which involves ten (10) acres
of land or less and ten (10) dwelling units or less, the Planning
Board shall grant or deny preliminary approval within forty-five (45)
days of the date of such submission or within such further time as
may be consented to by the applicant. Upon the submission of a complete
application for a site plan which involves more than ten (10) acres
or more than ten (10) dwelling units, the Planning Board shall grant
or deny preliminary approval within ninety-five (95) days of the date
of such submission or within such further time as may be consented
to by the applicant. If the Planning Board fails to act within the
time periods provided in this subsection, the Planning Board shall
be deemed to have granted preliminary approval of the site plan.
(2)
Preliminary
subdivision approval. Upon submission of a complete application to
the Zoning Officer for a subdivision of ten (10) or fewer lots, the
Planning Board shall grant or deny preliminary approval within forty-five
(45) days of the date of such submission or within such further time
as may be consented to by the applicant. Upon submission of a complete
application to the Zoning Officer for a subdivision of more than ten
(10) lots, the Planning Board shall grant or deny preliminary approval
within ninety-five (95) days of the date of such submission or within
such further time as may be consented to by the applicant. If the
Planning Board fails to act within the time periods provided in this
subsection, the Planning Board shall be deemed to have granted preliminary
approval of the subdivision.
(3)
Effect
of preliminary approval.
(a)
Preliminary approval of a subdivision or of a site plan shall, except
as otherwise provided herein, confer upon the applicant the following
rights for a three (3) year period from the date of adoption of the
resolution of preliminary approval:
[1]
That the general terms and conditions on which preliminary approval
was granted shall not be changed, including but not limited to use
requirements; layouts and design standards for streets, curbs and
sidewalks; lot size; yard dimensions; and off-tract improvements,
and, in the case of a site plan, any requirements peculiar to site
plan approval pursuant to N.J.S.A. 40:55D-41; to prevent the municipality
from modifying by ordinance such general terms and conditions of preliminary
approval as relates to public health and safety.
[2]
That the applicant may submit for final approval, on or before the
expiration date of preliminary approval, the whole or a section or
sections of the preliminary subdivision plat or site plan, as the
case may be.
[3]
That the applicant may apply for and the Planning Board may grant
extensions on such preliminary approval for additional periods of
at least one (1) year, but not to exceed a total extension of two
(2) years, provided that if the design standards have been revised
by ordinance, such revised standards shall govern.
(b)
Whenever the Planning Board grants an extension for preliminary approval
and preliminary approval has expired before the date of the grant
of the extension, the extension shall revive preliminary approval
and date from what was otherwise the date of expiration. The applicant
may apply for the extension either before or after what would otherwise
be the date of expiration.
(4)
Final
approval.
(a)
Application for final subdivision or site plan approval shall be
granted or denied within forty-five (45) days of submission of a complete
application to the Zoning Officer or within such further time as may
be consented to by the applicant.
(b)
Final approval of a subdivision shall expire ninety-five (95) days
from the date of signing of the plat unless within such period the
plat shall have been duly filed by the applicant with the County Recording
Officer, the Borough Engineer and the Borough Tax Assessor. The Planning
Board may, for good cause shown, extend the period for recording by
an additional period not to exceed one hundred ninety (190) days from
the date of the signing of the plat. The Planning Board may extend
the ninety-five (95) or one hundred ninety (190) day periods if the
applicant proves to the reasonable satisfaction of the Planning Board
that the applicant was barred or prevented, either directly or indirectly,
from filing because of delays in obtaining legally required approvals
from other governmental or quasi-governmental entities and the applicant
applied promptly for and diligently pursued these approvals. Such
extension shall be equal to the periods of delay caused by the wait
for the required approvals as determined by the Planning Board, and
the applicant may apply for such extension either before or after
the original expiration date.
(5)
Effect
of final approval.
(a)
The zoning requirements applicable to the preliminary approval first
granted and all other rights conferred upon the applicant at preliminary
approval, whether conditionally or otherwise, shall not be changed
for a period of two (2) years after the date of adoption of the resolution
of final approval, provided that in the case of a subdivision the
rights conferred by this section shall expire if the plat has not
been duly recorded within the required time periods. If the applicant
has followed the standards prescribed for final approval and in the
case of a subdivision, has duly recorded the plat, the Planning Board
may extend such periods of protection for extensions of one (1) year,
but not to exceed three (3) extensions. Notwithstanding any other
provisions of N.J.S.A. 40:55D-1 et seq., the granting of final approval
terminates the time periods of the rights conferred by preliminary
approval.
(b)
Whenever the Planning Board grants an extension of preliminary approval
and preliminary approval has expired before the date of the grant
of the extension, the extension shall revive preliminary approval
and date from what was otherwise the date of expiration. The applicant
may apply for the extension either before or after what would otherwise
be the date of expiration.
(6)
Combined
preliminary and final subdivision or site plan approval.
(a)
An applicant may request, and the Planning Board may consent to accept,
an application for development for combined preliminary and final
subdivision or site plan approval, provided that:
[1]
The proposed development is not to be constructed in sections or
stages.
[2]
The applicant pays the application fees and provides all submissions
required for both preliminary and final applications.
[3]
The applicant complies with any notice of hearing requirements applicable
to the preliminary plat stage.
(b)
Any approval granted by the Planning Board on such combined application
shall confer upon the applicant all the rights set forth in this section
for final approval.
(7)
Failure
to act. A certificate of the Zoning Officer as to the failure of the
Planning Board to act shall be issued on request of the applicant,
and it shall be sufficient in lieu of the written endorsement or other
evidence of approval, herein required, and shall be so accepted by
the County Recording Officer for the purpose of filing subdivision
plats.
O.
Simultaneous
review. The Planning Board shall have the power to review and approve
or deny site plans simultaneously with review for subdivision approval
without requiring the applicant to make further application to the
Planning Board or requiring the Planning Board to hold further hearings.
The longest time period for action by the Planning Board, whether
it is for subdivision or site plan approval, shall apply.
A.
The Planning
Board shall hereby exert all the powers of a Zoning Board of Adjustment
and shall have the power to:
(1)
Hear
and decide appeals where the appellant alleges that there is error
in any order, requirement, decision or refusal made by the Zoning
Officer based on or made in the enforcement of this chapter.
(a)
Appeals to the Planning Board may be taken by any interested party.
Each appeal shall be taken within the twenty (20) day period prescribed
by N.J.S.A. 40:55D-72 by filing with the Planning Board Secretary
a notice of appeal together with fifteen (15) copies of the notice.
The notice of appeal shall specify the grounds for the appeal. The
officer from whom the appeal is taken shall immediately transmit to
the Board all the papers constituting the record upon which the action
appealed from was taken.
(b)
The Planning Board shall render a decision on the appeal not later
than one hundred twenty (120) days after the date of the appeal from
the decision of the Zoning Officer. Failure of the Planning Board
to render a decision within the one hundred twenty (120) day period
shall constitute approval of the appeal.
(c)
An appeal shall stay all proceedings in furtherance of the action
appealed from unless the officer from whom the appeal is taken certifies
to the Planning Board, after the notice of appeal has been filed,
that by reason of facts stated in the certificate a stay would, in
his or her opinion, cause imminent peril to life or property. In such
cases, proceedings shall not be stayed otherwise than by a restraining
order which may be granted by the Superior Court of New Jersey, on
application or notice to the officer from whom the appeal is taken
and to the Borough Council, and on good cause shown.
(d)
The Planning Board may, in conformity with the provisions of N.J.S.A.
40:55D-1 et seq., reverse or affirm, wholly or partly, or may modify
the order, requirement, decision or determination of the administrative
order as ought to be made, and to that end the Planning Board shall
have all the powers of the Zoning Officer from whom the appeal was
taken.
(2)
Hear
and decide requests for interpretation of the Zoning Map or this chapter,
in accordance with N.J.S.A. 40:55D-1 et seq.
(3)
Hear
and decide requests for general variances ["C" Variances] as follows:
(a)
"(C)(1) Variance." Where, by reason of exceptional narrowness, shallowness
or shape of a specific property; or by reason of exceptional topographic
conditions or physical features uniquely affecting a specific piece
of property; or by reason of an extraordinary and exceptional situation
uniquely affecting a specific piece of property or the structures
lawfully existing thereon, the strict application of any regulation
pursuant to this chapter or N.J.S.A. 40:55D-1 et seq. would result
in peculiar and exceptional and undue hardship upon the applicant
for development of such property, grant, upon an application or an
appeal relating to such property, a variance from strict application
of such regulation so as to relieve such difficulties or hardship.
(b)
"(C)(2) Variance." Where, in an application or appeal relating to
a specific piece of property, the purposes of this chapter and N.J.S.A.
40:55D-1 et seq., would be advanced by a deviation from this chapter's
requirements and the benefit of the deviation would substantially
outweigh any detriment, grant a variance to allow departure from regulations
pursuant to this chapter and N.J.S.A. 40:55D-1 et seq.
(4)
Special
variance ["D" Variance]. In particular cases and for special reasons,
the Planning Board may grant a variance to allow departure from regulations
pursuant to N.J.S.A. 40:55D-62 et seq. to permit.
(a)
A use or principal structure in a zone restricted against such use
or principal structure,
(b)
An expansion of a nonconforming use,
(c)
Deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67
pertaining solely to a conditional use,
(d)
An increase in the permitted floor area ratio as defined in N.J.S.A.
40:55D-4, or
(e)
A height of a principal structure which exceeds by ten (10) feet
or ten (10%) percent the maximum height permitted in the zone for
a principal structure.
(5)
The
Planning Board shall, at least once a year, review its decisions on
applications and appeals for variances and shall prepare and adopt
by resolution a report on its findings on zoning ordinance provisions
which were the subject of variance requests, together with the Planning
Board's recommendations for zoning ordinance amendment or revision,
if any. The report shall be filed with the Borough Clerk.
B.
Expiration
of variances. Any variance granted by the Planning Board permitting
the erection or alteration of any structure or structures or permitting
a specified use of any premises shall expire two (2) years from the
date of publication of the notice of the judgment or determination
of the Planning Board, unless the construction, alteration or use
has actually been substantially commenced on each and every structure
permitted by the variance, or unless such development has actually
been substantially commenced, within the two-year period. The period
of limitation herein provided shall be tolled from the date of filing
an appeal from the decision of the Planning Board to a court of competent
jurisdiction, until the termination in any manner of such appeal or
proceeding. Where subdivision or site plan approval is required, the
period of time for commencement of the development specified by the
Planning Board shall be the same as the period of time for which other
rights are conferred upon the applicant by such subdivision or site
plan approval pursuant to the provisions of this chapter.
A.
Applications
for a development permit to be issued by the Planning Board shall
be accompanied by at least fifteen (15) copies. Applications shall
not be accepted by the Zoning Officer unless they are accompanied
by the required fees set forth in this chapter.
B.
Review
by Zoning Officer. Upon receipt of an application, the Zoning Officer
shall review the application and supporting exhibits for compliance
with submission requirements. Upon completion of this review, the
Zoning Officer shall also, upon receipt of an application for a site
plan or subdivision, forward one (1) copy of each of the applications,
plat and attachments to the Borough Engineer.
C.
Engineering
review. The Borough Engineer shall review applications for site plans
and subdivisions to determine if the applications are complete. If
the application is incomplete, the Borough Engineer shall notify the
applicant of any deficiencies. If the application is complete, the
application shall be scheduled for hearing by the Planning Board.
D.
Planning
Board action. In acting upon an application for a subdivision, variance
or site plan, the Planning Board shall consider whether the application
complies with the following standards:
(1)
The
proposed use is consistent with the Master Plan;
(2)
The
details and improvement standards of the plat are in accordance with
the standards of this chapter;
(3)
Adequate
provision is made for safe and convenient vehicular traffic access,
circulation and parking;
(4)
Adequate
provision is made for safe and convenient pedestrian circulation;
(5)
Ingress
and egress for the site will not impede or obstruct the flow of traffic
on public streets;
(6)
Adequate
provision has been made for the collection and disposal of surface
water runoff and the proposed drainage facilities have been approved
by the Borough Engineer;
(7)
Adequate
provision has been made to screen adjoining residential properties
from any adverse effects that might result from outdoor lighting,
buildings, parking areas, or similar site features or structures located
on the site;
(8)
Adequate
provision has been made for compliance with the performance standards
of this chapter;
(9)
Adequate
provision has been made to provide structures and uses of a quality
and design which will not produce adverse effects on the surrounding
area in the Master Plan; and
(10)
The
proposed development is compatible with approved subdivision and/or
site plans for adjacent and nearby parcels of land.
E.
Reproduction
fee and issuance of development permits. Approvals of all applications
for development permits shall not be valid until the completion of
the following procedures:
(1)
The
Zoning Officer shall certify that all conditions of approval have
been satisfied.
(2)
In
the case of applications for site plans and subdivisions, the applicant
shall submit the reproducible original of the plat for the signature
of the Chairman and Secretary or Assistant Secretary of the Planning
Board and the Borough Engineer.
(3)
In
the case of applications for site plans and subdivisions, the applicant
shall pay a reproduction fee equal to three ($3.00) dollars per sheet
of the plat and attachments, except that the minimum fee shall be
five ($5.00) dollars.
(4)
The
Zoning Officer shall cause three (3) copies of the signed plat and
attachments to be reproduced. One (1) copy shall be retained in the
files of the Zoning Officer, and one (1) copy shall be retained in
the files of the Borough Engineer.
(5)
After
signature and reproduction, the Zoning Officer shall return the reproducible
original of the plat and attachments to the applicant.
(6)
For
all applications that receive minor plat or final plat approval, the
Zoning Officer shall issue a zoning permit after the plat has been
signed. The date of the zoning permit shall be the date upon which
the approval becomes valid. The date upon which the approval of applications
related to sketch plats or preliminary plats becomes valid shall be
the date on which the plat is signed by the Chairman and Secretary
or Assistant Secretary of the Planning Board. However, the period
of time for which certain rights are conferred upon the applicant
shall commence on the date which the Planning Board granted the approval.
F.
At the
time of application, the Planning/Zoning Board secretary will provide
a copy of all site plan and/or subdivision application documents to
the Mantoloking Borough Environmental Commission for review.
A.
Prior to
issuance of a certificate of completeness or scheduling of an application
for development by the Planning Board, the Zoning Officer shall determine
that the requirements of this chapter have been met by the applicant's
submission. The applicant shall complete and submit the following:
(1)
Fifteen
(15) copies of the prescribed Borough development application;
(2)
Fifteen
(15) copies of a property survey map, prepared, signed and sealed
by a licensed New Jersey land surveyor. The map shall have been prepared
based upon a survey made within the past twelve (12) months preceding
the date of the application;
(3)
A Flood
Elevation Certificate for existing buildings.
(4)
Certification
by the municipal Tax Collector that all taxes relating to the subject
property have been paid;
(5)
Certification
by the applicant's attorney that the applicant is the owner of the
lot in question and for which development approval is being sought;
(6)
Fifteen
(15) copies of all plans the applicant intends to utilize at the hearing;
and
(7)
Applicable
fees.
A.
Optional
submission of sketch plat. Applicants are encouraged to submit a sketch
plat of a site during the early design stages containing that information
necessary to form a basis for discussion of alternatives for development.
A detailed review of a sketch plat will minimize the necessity of
major revisions in the more detailed preliminary plat submission.
Application fees paid at the sketch plat submission stage will be
deducted from the required application fees at the preliminary plat
stage if submittal of the preliminary plat is made within one (1)
year from the date of sketch plat approval.
B.
Sketch
plat requirements. Prior to issuance of a certificate of completeness
or scheduling of a public hearing for the sketch plat before the Planning
Board, the Zoning Officer shall determine that the following have
been submitted in proper form:
(1)
Application
fees.
(2)
Fifteen
(15) copies of the plat and attachments meeting the requirements set
forth below:
(a)
The sketch plat shall be based on a land survey or a current tax
map;
(b)
The plat shall be drawn at a scale not less than one hundred (100)
feet to the inch (100':1");
(d)
Detailed information, including but not limited to the following:
[1]
A key map adequately showing the location of the site with reference
to surrounding areas and streets;
[2]
Schedule indicating acreage of tract, number of lots, and zone;
[3]
Zone boundaries;
[4]
All existing structures and streets;
[5]
Boundaries, nature and extent of environmentally sensitive areas,
including but not limited to dunes and riparian lands, including such
evidence of demarcation of such areas as may be provided by the dune
reference line, mean high-water line, and bulkhead line;
[6]
Layout of proposed site plan or subdivision.
C.
Plat requirements.
(1)
General
requirements. The plat for a site plan shall be drawn at a scale of
not less than fifty feet to the inch (50': 1") shall conform to the
provisions of N.J.S.A. 46:23-9.9 et seq., as amended and supplemented,
and shall include or be accompanied by the information specified below;
provided, however, that the information required for construction,
alteration or expansion of a single-family dwelling in a residential
zone may be modified or waived by the Zoning Officer:
(a)
Dimensions, both linear and angular, of the exterior boundaries of
the site plan or subdivision. All lots and lands reserved or dedicated
for public use shall balance and their descriptions shall close within
a limit of error of not more than one (1) part in ten thousand (10,000).
(b)
The site plan shall be based upon a current boundary survey certified
to by the applicant and prepared by a land surveyor licensed in the
State of New Jersey or recertified not less than twelve (12) months
prior to the date of application.
(2)
Title
block. The title block shall appear on all sheets and shall include:
(a)
Title of Site Plan;
(b)
Name of the subdivision, if any;
(c)
Tax Map sheet, block and lot number(s) of the tract to be subdivided
as shown on the latest Borough Tax Map, the date of which shall also
be shown;
(d)
The acreage of the tract to the nearest tenth of an acre;
(e)
The names and addresses of owner and applicant so designated;
(f)
The date of the original plat and all revisions; and
(g)
The name(s), signature(s), address(es) and license number(s) of engineer
and/or land surveyor who prepared the map and made the survey. The
plat shall bear the embossed seal of the engineer and/or land surveyor.
(3)
Detailed
information.
(a)
A key map adequately showing the location of the site with reference
to surrounding areas, existing streets, the names of all such streets
and any zone boundary or Borough boundary which is within five (500)
hundred feet of the site;
(b)
The names of all owners and property lines of parcels within two
(200) hundred feet of the site, including properties across the street;
(c)
All zone boundaries and Tax Map sheet, lot and block numbers, existing
streets and watercourses within two hundred (200) feet of the boundaries
thereof, and both the width of the paving and the width of the right-of-way
of each street, existing public easements and municipal borders within
two hundred (200) feet of the site;
(d)
All existing structures, with an indication of any which are to be
destroyed or removed, and the front, rear and side yard dimensions
of any to remain, referenced to proposed lot lines;
(e)
All existing and proposed public easements or rights-of-way and the
purposes thereof;
(f)
The existing system of drainage of the site and of any larger tract
of which it is a part, together with information on how the applicant
proposes to dispose of surface drainage;
(g)
All proposed lot lines and the areas of all lots in square feet.
The areas and dimensions specified shall be shown to the nearest hundredth
of a square foot or hundredth of a linear foot;
(h)
North arrow;
(i)
Written and graphic scales;
(j)
A corporation or partnership shall list the names and addresses of
all stockholders or individual partners owning at least ten (10%)
percent of its stock of any class or at least ten (10%) percent of
the interest in the partnership, as the case may be. This requirement
shall be followed by every corporate stockholder or partner in a partnership
until the names and addresses of the noncorporate stockholders and
individual partners exceeding the ten (10%) percent ownership criterion
have been listed;
(k)
Proposed lot and block numbers approved by the Borough Engineer;
and
(l)
Such other information as the Planning Board and/or Borough Engineer
may require or request during the review of the application for classification
and approval as a site plan.
D.
Review by Zoning Officer. Prior to issuance of a certificate of completeness or scheduling of a site plan for consideration by the Planning Board, the Zoning Officer shall determine that requirements of this chapter have been met by the applicant's site plan submission. Site plan applications shall conform to the greatest extent practical with the detailed requirements of § 30-35, Surface water management.
A.
Conditions
of approval. Any approval of an application for development for a
subdivision or site plan granted by the Planning Board shall be subject
to the following conditions being satisfied prior to the signing of
the subdivision or site plan or issuance of a development permit:
(1)
Posting
of performance guarantees for the installation of any improvements
required by the Planning Board;
(2)
Proof
of payment of any outstanding real estate taxes or other municipal
charges;
(3)
Ocean
County Planning Board approval, if required and not previously granted;
(4)
Mantoloking
Borough approval or waiver of sewer requirements, if not previously
granted;
(5)
Payment
of the required reproduction fees;
(6)
Submission
of additional prints of the plat map and attachments for distribution,
if required;
(7)
The
applicant's publication of a notice of the decision;
(8)
Any
other conditions which may be imposed by the Planning Board or which
may be required by Federal, State or local law;
(9)
When
improvements are required in public rights-of-way, evidence of a comprehensive
general liability insurance policy in an amount not less than one
million ($1,000,000.00) dollars per occurrence, indemnifying and holding
harmless the Borough of Mantoloking and its officials, officers, agents,
servants, employees, and professional service providers from any liability
for any acts of the applicant or his agents, contractors or employees
in the implementing of the approved subdivision. The insurance policy
shall provide for thirty (30) days' notice to the Borough prior to
cancellation. It shall be a violation of this chapter for any property
owner, applicant or builder to implement the approved subdivision
without current valid evidence of insurance on file; and
(10)
The
Borough Engineer's approval of the Surface Water Management Plan.
B.
Plat requirements.
(1)
General
requirements.
(a)
Any subdivision presented to the Planning Board for its approval
shall be drawn, signed and appropriately sealed by an architect, professional
engineer, land surveyor and/or professional planner licensed to practice
in the State of New Jersey as each is permitted by law.
(b)
Subdivisions and site plans shall not be drawn at a scale smaller
than one inch equals fifty feet (1"=50') nor larger than one inch
equals ten feet (1"=10').
(2)
Title
block. The title block shall appear on all sheets and shall include:
(a)
The title of Subdivision or Site Plan, whichever shall apply;
(b)
The name of the development, if any;
(c)
The Tax Map sheet, block and lot number of the site, as shown on
the latest Borough Tax Map, the date of which should also be shown;
(d)
The date of the original subdivision and all revisions;
(e)
The names and addresses of the owner and applicant for development,
so designated;
(f)
The name(s), signature(s), address(es) and license number(s) of the
engineer, architect, land surveyor or planner who prepared the plat
and their embossed seal; and
(g)
If the subdivision contains more than one (1) sheet, each sheet shall
be numbered and titled.
(3)
A schedule
indicating:
(a)
The acreage of the tract and siting the portion of the tract involved
in the subdivision;
(b)
The floor area of the existing and proposed buildings, listed separately;
(c)
The proposed use or uses and the floor area devoted to each use;
(d)
The zone in which the site is located;
(e)
Proposed and required lot dimensions and front, rear and side setbacks;
(f)
Proposed and required off-street parking spaces; and
(g)
Square footage and percentage of the site retained in unoccupied
open space.
(4)
North
arrow, written and graphic scales.
(5)
Sufficient
spot elevations (United States Coast and Geodetic Datum) and/or contour
lines to indicate the proposed system of surface drainage and the
relationship of proposed grading to the land surrounding the site,
including dune elevations if applicable.
(6)
The
tops of the banks and boundaries of the floodways and flood hazard
areas of all existing watercourses, where such have been delineated,
or the scarp line in the case of oceanfront property, or the limits
of alluvial soils where the boundaries of floodways and flood hazard
areas have not been determined, and/or such other information as may
assist the Planning Board in the determination of floodway and flood
hazard area limits.
(7)
Paving
and right-of-way widths of existing streets within two hundred (200)
feet of the site.
(8)
The
boundary, nature and extent of any environmentally sensitive areas,
including but not limited to dunes and riparian lands, as well as
such demarcation of such areas as may be provided by the dune reference
line, the mean high—water line, or the bulkhead line.
(9)
All
existing structures on the site and within two hundred (200) feet
of the site, indicating those to be destroyed or removed and those
to remain, and including the use thereof.
(10)
Location,
use, finished grade level, ground coverage, first floor and other
pertinent improvements.
(11)
Existing
and proposed public easements or rights-of-way and the purpose thereof.
(12)
Zone
boundaries and tax map sheet, lot and block numbers and names of owners
of all properties within two hundred (200) feet of the site.
(13)
A
key map adequately showing the location of the site with reference
to surrounding areas, existing streets, the names of all such streets
and any zone boundary or Borough boundary which is within five hundred
(500) feet of the subdivision.
(14)
The
capacity of off-street parking areas and the location and dimensions
of all access drives, aisles and parking stalls.
(15)
The
location and size of proposed loading docks.
(16)
Location
of curbs and sidewalks.
(17)
Cross
section(s) showing the composition of pavement areas, curbs and sidewalks.
(18)
Exterior
lighting plan, including the location and drawn details of all outdoor
lighting standards and fixtures and a notation on the plat indicating
conformity or nonconformity with the minimum design standards of this
chapter.
(19)
Landscaping
and screening plan showing the location type, spacing and number of
each type of tree or shrub and the location, type and amount of each
type of ground cover to be utilized.
(20)
Location of signs and drawn details showing the size, nature of construction, height and content of all signs. See § 30-42.
(21)
Drawn
details of the type of screening to be utilized for refuse storage
areas.
(22)
Floor
plans and building elevation drawings of any proposed structure or
structures, or existing structures to be renovated.
(23)
Proposed
measures for surface water management consistent with this chapter.
(24)
Approval
block for signatures of the Planning Board Chairman and the Borough
Engineer.
C.
Preliminary
subdivision approval — time for decision.
(1)
A complete
application for preliminary approval of a subdivision shall be submitted
to the Zoning Officer. The plat and any other engineering documents
to be submitted shall be required in tentative form for discussion
purposes for preliminary approval.
(2)
If
the Planning Board requires any substantial amendment in the layout
of improvements proposed by the applicant that have been the subject
of a hearing, an amended application for development shall be submitted
and proceeded upon, as in the case of the original application for
development. The Planning Board shall, if the proposed development
complies with this chapter, grant preliminary subdivision approval.
(3)
Upon
the submission to the Secretary of the Planning Board of a complete
application for a subdivision of ten (10) or fewer lots, the Planning
Board shall grant or deny preliminary approval within forty-five (45)
days of the date of such submission or within such further time as
may be consented to by the applicant.
(4)
Upon
the submission of a complete application for a subdivision of more
than ten (10) lots, the Planning Board shall grant or deny preliminary
approval within ninety-five (95) days of the date of such submission
or within such further time as may be consented to by the applicant.
(5)
Failure
of the Planning Board to reach a decision within the specified time
periods or extensions thereof shall result in the approval of the
subdivision as submitted.
D.
Effect
of preliminary subdivision approval.
(1)
If
the Planning Board acts favorably on a preliminary application, a
notation to that effect shall be made on the plat.
(2)
Preliminary
approval of a subdivision shall confer upon the applicant the following
rights for a three (3) year period from the date of the preliminary
approval:
(a)
That the general terms and conditions on which preliminary approval
was granted shall not be changed, including but not limited to use
requirements; layout and design standards for streets, curbs, and
sidewalks; lot size; yard dimensions and off-tract improvements; except
that nothing herein shall be construed to prevent the Borough from
modifying, by ordinance, such general terms and conditions of preliminary
approval as relate to public health and safety;
(b)
That the applicant may submit for final approval on or before the
expiration date of preliminary approval, the whole or a section or
sections of the preliminary subdivision plat; and
(c)
That the applicant may apply for, and the Planning Board may grant,
extensions on such preliminary approval for additional periods of
at least one (1) year but not to exceed a total extension of two (2)
years, provided that if the design standards have been revised by
ordinance, such revised standards may govern.
E.
Final approval
of subdivisions.
(1)
The
final plat shall be submitted to the Planning Board for final approval
within three (3) years from the date of preliminary approval.
(2)
The
Planning Board shall grant final approval if the detailed drawings,
specifications and estimates of the application for final approval
conform to the standards established by this chapter; the conditions
of preliminary approval; and the standards prescribed by the "Map
Filing Law", N.J.S.A. 46:23-9.9 et seq. as amended and supplemented.
(3)
Final
approval shall be granted or denied within forty-five (45) days after
submission of a complete application to the Secretary of the Planning
Board, or within such further time as may be consented to by the applicant.
Failure of the Planning Board to act within the period prescribed
shall constitute final approval, and a certificate of the Planning
Board Secretary as to the failure of the Planning Board to act shall
be issued on the applicant's request, and it shall be sufficient in
lieu of the written endorsement or other required evidence of approval,
and shall be so accepted by the County Recording Officer for the purpose
of filing subdivision plats.
F.
Waiver
of requirements authorized. When acting upon applications for preliminary
approval, the Planning Board shall have the power to grant such exceptions
from the requirements for subdivision approval as may be reasonable
and within the general purpose and intent of the provisions for subdivision
review and approval of this chapter if the literal enforcement of
one or more provisions of this chapter is impracticable or will exact
undue hardship because of peculiar conditions pertaining to the land
in question.
G.
Effect
of final approval of subdivisions. The requirements applicable to
the preliminary approval first granted and all other rights conferred
upon the subdivision, whether conditionally or otherwise, shall not
be changed for a period of two (2) years after the date of final approval;
provided that in the case of a subdivision the rights conferred by
this section shall expire if the plat has not been duly recorded within
ninety-five (95) days from the date of signing of the plat, unless
within such period the applicant filed the plat with the County Recording
Officer. If the applicant has followed the standards prescribed for
final approval, and has duly recorded the plat as required in this
chapter, the approving authority may extend such period of protection
for extensions of one (1) year but not to exceed three (3) extensions.
H.
Guarantees
required.
(1)
Before
the recording of final subdivision plats, the Planning Board may require,
and shall accept in accordance with the standards adopted by this
chapter, for the purpose of assuring the installation and maintenance
of on-tract improvements:
(a)
The furnishing of a performance guarantee in favor of the Borough
in an amount not to exceed one hundred twenty (120%) percent of the
cost of installation, for improvements it may deem necessary or appropriate
including: streets, grading, pavement, gutters, curbs, sidewalks,
street lighting, shade trees, surveyor's monuments as shown on the
final map and required by the "Map Filing Law", N.J.S.A. 46:23-9.9
et seq., water mains, culverts, storm sewers, sanitary sewers, or
other means of sewage disposal, drainage structures, erosion control
and sedimentation control devices, or public improvements of open
space; provided that no more than ten (10%) percent of the total performance
guarantee shall be required to be in cash, and the balance shall be
in the form of a bond from a bonding company, approved by the Borough
Council, or an irrevocable letter of credit, provided the letter of
credit meets the requirements of N.J.S.A. 40:55D-53.5.
The Borough Engineer shall review the improvements required
by the Planning Board which are to be bonded and shall itemize their
cost. The Borough Engineer's itemization shall be the basis for determining
the amount of performance guarantee and maintenance guarantee required
by the Planning Board. The Borough Engineer shall forward his estimate
of the cost of improvements to the applicant within thirty (30) days
of the date of receipt of an applicant's request for the estimate.
The applicant may appeal the Borough Engineer's estimate to the Borough
Council, which shall decide the appeal within forty-five (45) days
of the Borough Clerk's receipt of the appeal in writing. The applicant's
right to further appeal shall be governed by N.J.S.A. 40:55D-53.4.
(b)
The furnishing of a maintenance guarantee to be posted with the Borough
Clerk for a period not to exceed two (2) years after final acceptance
of the improvement, in an amount not to exceed fifteen (15%) percent
of the cost of the improvement, as determined by the Borough Engineer.
In the event that governmental agencies or public utilities other
than the Borough of Mantoloking will own the utilities to be installed
by operation of law or if 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 of Mantoloking for such utilities or improvements.
(2)
The
time allowed for installation of the improvements for which the performance
guarantee has been provided may be extended by the Borough Council
by Resolution. As a condition or as part of any such extension, the
amount of a performance guarantee shall be increased or reduced, as
the case may be, to an amount not to exceed one hundred twenty (120%)
percent of the cost of the installation as determined as of the time
of the passage of the resolution.
(3)
If
the required 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 complete such improvements
either prior to or after the receipt of the proceeds of the guarantee.
(4)
Upon
substantial completion of all required appurtenant utility improvements,
and the connection of the improvements to the public system, the obligor
may notify the Borough Council in writing, by certified mail addressed
in care of the Borough Clerk, of the completion or substantial completeness
of the improvements, and shall send a copy of the written notice to
the Borough Engineer. Upon receipt of the notice, the Borough Engineer
shall inspect all improvements of which such notice has been given
and shall file a detailed report, in writing, with the Borough Council,
indicating either approval, partial approval or rejection of such
improvements with a statement of reasons for any rejection. The cost
of the improvements rejected shall be set forth.
(5)
The
Borough Council shall either approve, partially approve or reject
the improvements, on the basis of the report of the Borough Engineer
and shall notify the obligor in writing, by certified mail, of the
contents of the report and the action of the Borough Council not later
than forty-five (45) days after receipt of the Borough Engineer's
report. Where partial approval is granted, the obligor shall be released
from all liability pursuant to its performance guarantee except for
the improvements not yet approved; provided that thirty (30%) percent
of the amount of the performance guarantee posted may be retained
to ensure completion of all improvements. Failure of the Borough Council
to send or provide such notification to the obligor within forty-five
(45) days of the Borough Engineer's report shall be deemed to constitute
approval of the improvements and the obligor and surety, if any, shall
be released from all liability pursuant to the performance guarantee
for such improvements.
(6)
If
any portion of the required improvements is rejected, the Borough
Council may require the obligor to complete such improvements and,
upon completion, the same procedure of notification as set forth in
this section shall be followed.
(7)
The
obligor shall reimburse the Borough for all reasonable inspection
fees paid the Borough Engineer for the foregoing inspection of improvements;
provided that the Borough may require of the applicant a deposit for
all or a portion of the reasonably anticipated fees to be paid to
the Borough Engineer for such inspection. The deposit shall not exceed
the greater of five hundred ($500.00) dollars or five (5%) percent
of the cost of improvements, except for extraordinary circumstances.
(8)
In
the event that final approval is by stages or sections of development
pursuant to N.J.S.A. 40:55D-38, then the provisions of this section
shall be applied by stage or section.
I.
Filing
of subdivision plats.
(1)
Final
approval of a subdivision shall expire ninety-five (95) days from
the date of signing of the plat unless within such period the applicant
filed the plat with the County Recording Officer. The Planning Board
may, for good cause shown, extend the period for recording for an
additional period not to exceed one hundred ninety (190) days from
the date of signing of the plat.
(2)
The
Planning Board may extend the ninety-five (95) day or one hundred
ninety (190) day period if the applicant proves to the reasonable
satisfaction of the Planning Board that the applicant was barred or
prevented directly or indirectly from filing because of delays in
obtaining legally required approvals from other governmental or quasi-governmental
entities, and that the applicant applied promptly for and diligently
pursued the required approvals. The length of the extension shall
be equal to the period of delay caused by the wait for the required
approvals as determined by the Planning Board.
(3)
Final
approval of a subdivision shall be evidenced by affixing to the plat
the signature of the Chairman and Secretary of the Planning Board,
or a copy of the certificate of the Secretary of the Planning Board
indicating that the Planning Board failed to reach a decision on the
subdivision application within the prescribed time. The signatures
of the Chairman and Secretary of the Planning Board shall not be affixed
until the applicant has posted the guarantees required pursuant to
this chapter.
J.
Selling
land before final subdivision approval.
(1)
If,
before final subdivision approval has been granted, any person transfers
or sells, or agrees to transfer or sell, except pursuant to an agreement
expressly conditioned on final subdivision approval, as owner or agent,
any land which forms a part of a subdivision for which Borough approval
is required by this chapter, such person shall be subject to a penalty
not to exceed one thousand two hundred fifty ($1,250.00) dollars;
provided, however, that each lot disposition so made may be deemed
a separate violation.
(3)
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 applicant, his assigns
or successors, to secure the return of any deposit made or purchase
price paid, in addition to a reasonable search fee, survey expenses
and title closing expenses, if any. Any such action must be brought
within two (2) years after the date of the recording of the instrument
of transfer, sale or conveyance of the land, or within six (6) years,
if unrecorded.
K.
Certificates
showing approval.
(1)
The
prospective purchaser, prospective mortgagee, or any other person
interested in any land which forms part of a subdivision, or which
formed part of such a subdivision as of August 1, 1973, may apply
in writing to the Borough Clerk for the issuance of a certificate
certifying whether or not such subdivision has been approved by the
Planning Board. Such application shall contain a diagram showing the
location and dimension of the land to be covered by the certificate
and the name of the owner thereof.
(2)
The
Borough Clerk shall make and issue such certificate within fifteen
(15) days after the receipt of the written application and the fees
required by this chapter and by N.J.S.A. 54:5-14 and 54:5-15. The
Borough Clerk shall keep a duplicate copy of each certificate, consecutively
numbered, including a statement of the fee charged, in a binder as
a permanent record of his or her office.
(3)
Each
such certificate shall be designated a "Certificate as to Approval
of Subdivision of Land" and shall certify:
(a)
That there exists in the Borough of Mantoloking a duly established
Planning Board and that there is an ordinance controlling subdivision
of land adopted under the authority of the "Municipal Land Use Law
of 1975, c. 291 as amended and supplemented." (N.J.S.A. 40:55D-1 et
seq.);
(b)
Whether the subdivision, as it relates to the land shown in the application,
has been approved by the Planning Board, and if so, the date of such
approval and any extensions and terms thereof, showing that the subdivision
of which the lands are a part is a validly existing subdivision; and
(c)
If the subdivision has not been approved, whether the subdivision
is statutorily exempt from the requirement of approval as provided
in N.J.S.A. 40:55D-1 et seq.
(4)
The
Borough Clerk shall be entitled to demand and receive for such certificate
issued by him or her a reasonable fee not in excess of that provided
in N.J.S.A. 54:5-14 and 54:5-15. The fees so collected by the Borough
Clerk shall be paid over to the Borough.
A.
Performance
guarantee.
(1)
Requirements;
form; rights.
(a)
Improvements; cost.
[1]
Prior to the filing of a final plat, recording of minor subdivision
deeds, or as a condition of final site plan approval, or as a condition
to the issuance of a zoning permit, the developer shall have filed
with the Borough Clerk a performance guarantee sufficient in amount
to equal the total cost to the Borough, as estimated by the Borough
Engineer, for installation of those on-site improvements required
by an approval or developer’s agreement, ordinance or regulations
to be dedicated to a public entity that have not yet been installed,
including the following as shown on the approved plans or plat:
[a]
Streets.
[b]
Pavement.
[c]
Gutters.
[d]
Curbs.
[e]
Sidewalks.
[f]
Street Lighting.
[g]
Street Trees.
[h]
Surveyor’s monuments.
[i]
Water mains.
[j]
Sanitary sewers.
[k]
Community septic systems.
[l]
Drainage structures.
[m]
Public improvements of open space.
[n]
Any grading necessitated by the preceding improvements.
[o]
Privately owned perimeter buffer landscaping, provided, however that
a developer may choose to post a separate performance guarantee for
the privately-owned perimeter buffer landscaping.
(b)
Such guarantee shall assure the installation of such improvements
on or before an agreed date, guarantee the completion of all improvements
without damage to or interference with adjacent properties or public
facilities and hold the Borough Council and Borough Planning Board
or Zoning Board of Adjustment and their employees and agents harmless
with respect to any acts of the developer, its agents, successors
or assigns.
(c)
The total estimated cost to the Borough of constructing all improvements
shall be based upon the estimated contract construction costs, which
would prevail upon expiration of the guarantee period, and shall also
include appropriate allowances for contract-related costs such as
engineering, legal, financial and other usual costs, which shall be
estimated to be 20% of the estimated contract construction costs.
(d)
Such performance guarantee may be in the form of cash, certified
check, negotiable securities, a performance bond issued by a bonding
company or surety company approved by the Borough Council or any other
type of surety acceptable to and approved by the Borough Attorney
and Borough Council, provided that at least 10% of the performance
guarantee shall be in cash or certified check. The balance of said
performance guarantee shall be in the form of cash, certified check,
certificate of deposit, an irrevocable letter of credit (said letter
to be issued by a financial institution whose deposits are insured
by the Federal Savings and Loan Insurance Corporation or Federal Deposit
Insurance Corporation) or a bond issued by a surety or bonding company
authorized to do business in New Jersey; provided, however, that all
rights, including the right to interest with dividends, shall be assigned
to the Borough of Mantoloking in a form of assignment acceptable to
the Borough Attorney for the period of the bond and that the principal
amount of the passbook or certificate of deposit, together with interest,
shall be returned to the developer upon completion of the bonded improvements,
or, in the event of default, both interest and principal shall be
used by and for the benefit of the Borough in the completion of said
improvements.
(e)
The form of the performance guarantee shall be subject to the approval
of the Borough Attorney.
(f)
Subject to N.J.S.A. 40:55D-1 et seq., as amended and supplemented,
all rights in the performance guarantee, including the right to any
interest earned on any deposits, shall belong to the Borough of Mantoloking.
(g)
Notwithstanding the requirement of Subsection A(1) above, when a letter of credit which has been previously accepted pursuant to Subsection A(1) as a performance guarantee is about to expire, it may be renewed administratively by the Borough Attorney, provided that all pertinent requirements are met by the applicant.
(h)
In the event of default, the principal and any interest shall be
used for the benefit of the Borough in the completion of the improvements.
(2)
All
guaranties authorized by this Chapter shall run to and be in favor
of the Borough of Mantoloking in the County of Ocean.
(3)
Such
performance guarantee shall run for a period to be fixed by the Borough
Council, but in no case for a term of more than two years. However,
with the consent of the owner and the surety, if there is one, the
Borough Council may, by resolution, extend the term of such performance
guarantee for an additional period not to exceed one year. The amount
of the performance guarantee may be revised by the Borough Council
from time to time to reflect work progress, increasing costs and changing
conditions in regard to the uncompleted or unacceptable portions of
the required improvements. If the required improvements have not been
installed in accordance with the performance guarantee, the obligor
and surety shall be liable thereon, at the option of the municipality,
for:
(4)
Municipal
Engineer list and report.
(a)
Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactorily completed bonded improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon, the Municipal Engineer shall inspect all 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.
(b)
The list prepared by the Municipal Engineer shall state, in detail, with respect to each bonded improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Municipal Engineer shall identify each 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 improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection A of this section.
(5)
Approval
or rejection of governing body.
(a)
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Municipal Engineer or reject any or all of these bonded improvements upon the establishment in the resolution of cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the 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 Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved bonded improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the total performance guarantee and “safety and stabilization guarantee” posted may be retained to ensure completion and acceptability of all improvements. The “safety and stabilization guarantee” shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction. For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection A 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 municipality may retain 30% of the amount of the total performance guarantee and “safety and stabilization guarantee” to ensure completion and acceptability of bonded improvements as provided above; except that any amount of the performance guarantee attributable to bonded improvements for which a “temporary certificate of occupancy guarantee” has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30 percent.
(b)
If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection A(4) of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Municipal Engineer to provide the list and report within a stated time, and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the 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.
(c)
In the event that the obligor has made a cash deposit with the municipality
or approving authority as part of the performance guarantee, then
any partial reduction granted in the performance guarantee pursuant
to this subsection shall be applied to the cash deposit in the same
proportion as the original cash deposit bears to the full amount of
the performance guarantee.
(6)
If
any portion of the required improvements are rejected, the Borough
Council may require the obligor to complete such improvements, and,
upon completion, the same procedure of notification as set forth in
this section shall be followed.
(7)
Nothing
herein, however, shall be construed to limit the right of the obligor
to contest by legal proceedings any determination of the Borough Committee
or the Borough Engineer.
B.
Safety
and stabilization guarantee.
(1)
The
developer shall furnish a “safety and stabilization guarantee”
in favor of the Borough of Mantoloking to ensure that the Borough
has an adequate guarantee to return the property that has been disturbed
to a safe and stable condition or otherwise implement measures to
protect the public from access to an unsafe or unstable condition.
(2)
The
Borough shall be permitted to access the guarantee when:
(a)
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
(b)
Work has not recommenced within 30 days following the provision of
written notice by the municipality to the developer of the municipality’s
intent to claim payment under the guarantee.
(c)
At the developer’s option, the “safety and stabilization
guarantee” may be included as a line item in the performance
guarantee rather than in the form of a separate guarantee.
(d)
The amount of the safety and stabilization guarantee shall be calculated
pursuant to N.J.S.A. 40:55D-53.4 as follows:
(e)
The safety and stabilization guarantee shall be released upon the
determination of the Borough engineer 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.
C.
Temporary
certificate of occupancy guarantee.
(1)
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 of Mantoloking
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.
(2)
Upon
posting of a “temporary certificate of occupancy guarantee,”
all sums remaining under a performance guarantee which relate to the
development, unit, lot, building, or phase of development for which
the temporary certificate of occupancy is sought, shall be released.
(3)
The
scope and amount of the “temporary certificate of occupancy
guarantee” shall be determined by the Borough Engineer.
(4)
The
“temporary certificate of occupancy guarantee” shall be
released by the Borough Engineer upon the issuance of a permanent
certificate of occupancy with regard to the development, unit, lot,
building, or phase as to which the temporary certificate of occupancy
relates.
D.
Maintenance
guarantee.
(1)
A maintenance
guarantee shall be furnished by the developer prior to the release
of the performance guarantee in an amount equal to 15% of the installation
of the improvements covered under the performance guarantee along
with the following private site improvements: stormwater management
basins, in-flow and water quality structures within the basins, and
the out-flow pipes and structures of the stormwater management system,
if any.
(2)
The
developer may elect to furnish such maintenance guarantee either by
maintaining on deposit with the Borough the ten-percent cash or certified
check portion of the performance guarantee provided in accordance
with of this chapter or by a bond issued by a bonding company or surety
company, or other type of surety acceptable to and approved by the
Borough Attorney and Borough Council.
(3)
The
maintenance guarantee shall begin with the release of the performance
guarantee and shall run for a period of two years. The guarantee shall
automatically expire at the end of the established term.
(4)
The
maintenance guarantee shall be to the effect that the applicant, developer,
owner or user guarantees the complete maintenance of all improvements
for a period of two years from the release of his performance guaranty.
Should he fail in his obligation to properly maintain all improvements,
the Borough may, on 10 days' written notice, or immediately in the
case of hazard to life, health or property, proceed with necessary
repair or replacement of any unacceptable improvements and charge
the cost thereof against the guaranty. At the end of the maintenance
guaranty, the cash or certified check on deposit will be returned
to the developer less any sums, properly documented by the Borough,
which have been expended to repair or replace any unsatisfactory improvements.
