[Amended 12-6-1999 by Ord. No. 13-99; 8-11-2005 by Ord. No. 10-05; 10-27-2005 by Ord. No. 16-05; 10-26-2006 by Ord. No. 23-06; 3-8-2007 by Ord. No. 03-07; 4-26-2007 by Ord. No. 06-07; 12-27-2007 by Ord. No. 25-07; 5-14-2009 by Ord. No. 04-09; 12-8-2011 by Ord. No. 16-11; 12-13-2012 by Ord. No. 26-12; 2-26-2015 by Ord. No. 02-15; 9-13-2018 by Ord. No. 15-18; 6-23-2022 by Ord. No. 13-22; 9-28-2023 by Ord. No. 23-19; 10-10-2024 by Ord. No. 24-22]
A. 
Upon the filing of any appeal or application for development to the Land Use Board by any person other than an officer of the Borough of Rockaway acting in an official capacity or a department, board or agency of the Borough, the appellant or applicant shall pay an application charge and an escrow deposit. The application charge is a flat fee to cover administrative expenses and is nonrefundable. The escrow account is established to cover the cost of professional services rendered to the appropriate municipal agency (including engineering, planning and other expenses connected with the review of submitted materials) for development review and preparation of documents, or inspection of improvements.
B. 
No application for development shall be deemed complete until such time as the applicant shall have posted with the Borough of Rockaway in cash or check the application charge and escrow deposit determined by the Land Use Board to be required in accordance with the provisions of this chapter. Failure to remit any additional required escrow moneys within 15 days of the request shall render the application incomplete, and no further proceedings or actions shall be taken by the Board until after compliance.
C. 
An expansion or change of a preexisting nonconforming use shall be deemed a use variance and the appropriate application charge and escrow fee shall be paid.
D. 
Where an application includes preexisting nonconforming aspects of a property which must be addressed as a result of the applicant's seeking of a variance as to that property, the appropriate application charges and escrow deposits must be paid for each nonconforming aspect of the property which requires the granting of a variance.
E. 
Where one application for development includes several approval requests, the sum of the individual required fees shall be paid.
F. 
Each applicant for subdivision or site plan approval shall agree to pay all reasonable costs for professional review of the application and for preparation of any required legal documentation, including a developer's agreement. Additionally, each applicant shall pay all reasonable costs for inspection and testing of the improvements. All costs for review and for preparation of the required legal documentation must be paid before any approved plat, plan or deed is signed, and all inspection fees must be paid in accordance with § 169-57 (Inspections and tests) of this chapter before any construction permit is issued, and all remaining costs must be paid in full before any occupancy of the premises is permitted or certificate of occupancy issued.
G. 
If an applicant desires a court reporter, the cost for taking testimony and transcribing it and providing a copy of the transcript to the Borough shall be at the expense of the applicant who shall arrange for the reporter's attendance.
Every application for development shall be accompanied by a check payable to the Borough of Rockaway in accordance with the following schedule for the application charge and a separate check payable to the Borough of Rockaway for the escrow deposit.
Application Charge
Initial Escrow Deposit
A.
Subdivisions
(1)
Minor
$600
$1,000
(2)
Preliminary major
$500, plus $100 per lot
$100 per lot, minimum $1,500; maximum $8,000
(3)
Final major
$300, plus $50 per lot
$50 per lot, minimum $1,000; maximum $8,000
(4)
Concept plat for review
(a)
Minor
$100
$500
(b)
Major
$200
$1,000
B.
Site plans
(1)
Minor
$500, plus $50 for each 1,000 square feet of lot area
$2,500
(2)
Preliminary major
$500 plus $10 per 1,000 square feet of lot area or any portion thereof
$3,000 plus $20 per 1,000 square feet of lot area or any portion thereof; maximum $8,000
(3)
Final plan
50% of preliminary major
$3,000, plus $10 per 1,000 square feet of lot area or any portion thereof; maximum $8,000
(4)
Concept plan for review
(a)
Minor
$100
$500
(b)
Major
$200
$2,000
(5)
Site plan waiver
$300
$500
C.
Variances
(1)
Appeals (N.J.S.A. 40:55D-70a)
$250
$2,000
(2)
Interpretation (N.J.S.A. 40:55D-70b)
$250
$2,000
(3)
Bulk (N.J.S.A. 40:55D-70c)
(a)
Single-family residential lot
$400
$500
(b)
All others:
First variance
$400
$2,500
Each additional variance/design waiver
$0
$250
(4)
Use (N.J.S.A. 40:55D-70d)
$1,000
$2,500
(5)
Permit (N.J.S.A. 40:55D-34 and 40:55D-35)
$250
$500
D.
Conditional use application
$500 plus $10 per 1,000 square feet of lot area or any portion thereof
$3,000 plus $20 per 1,000 square feet of lot area or any portion thereof; maximum $8,000
E.
Bond releases
(1)
Performance
$100
Where costs of improvements were less than $50,000, the escrow shall be $600; where $50,000 to $100,000: $1,500; over $100,000: $2,000
(2)
Maintenance
$100
Where costs of improvements were less than $50,000, the escrow shall be $350; where $50,000 to $100,000: $1,000; over $100,000: $1,500
F.
Extension of time request
$200
$1,000
G.
Development permit (flood damage prevention)
$200
$1,000
The Chief Financial Officer of the Borough shall collect escrow deposits from applicants and make all of the payments to professionals for services rendered to the Borough in connection with land development applications in accordance with the procedures set forth in N.J.S.A. 40:55D-53.1 through 40:55D-53.2a.
Tax Map revision fees shall be as follows:
A. 
Minor subdivision plat: $75 per lot.
B. 
Final major subdivision plat: $75 per lot not to exceed $3,500 per application.
C. 
Site plan application creating condominium units (whether residential or commercial units): $75 per unit, not to exceed $3,500 per application.
A. 
A certificate of subdivision approval shall be pursuant to N.J.S.A. 40:55D-56.
B. 
The Borough Clerk shall be entitled to demand and receive for each certificate of subdivision issued a reasonable fee not in excess of those provided in N.J.S.A. 54:5-14 and 54:5-15.
A. 
All site improvements and utility installations for both site plans and subdivisions shall be inspected during the time of their installation under the supervision of the Borough Engineer to insure satisfactory completion. The cost of said inspection shall be the responsibility of the owner who shall deposit with the Borough Treasurer a sum not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined by the Borough Engineer.
B. 
In no case shall any paving work be done without permission from the Borough Engineer. At least two working days' notice shall be given to the Borough Engineer prior to any construction so that he or a qualified representative may be present at the time the work is to be done.
C. 
Any improvement installed without notice for inspection shall constitute just cause for:
(1) 
Removal of the uninspected improvement;
(2) 
The payment by the developer of any costs for material testing;
(3) 
The restoration by the developer of any improvements disturbed during any material testing; and/or
(4) 
The issuance of a stop-work order by the Borough Engineer pending the resolution of any dispute.
The approval of any application for development by the Borough shall in no way be construed as acceptance of any street or drainage system, or any other improvement, nor shall such approval obligate the Borough in any way to exercise jurisdiction over such street or drainage system or other improvement. No improvement shall be accepted by the Mayor and Council unless and until all of the following conditions have been met:
A. 
The Borough Engineer shall have certified in writing that the improvements are completed and that they comply with the requirements of this chapter.
B. 
The final application for development shall have been approved by the Board.
C. 
The owner shall have filed with the Borough a maintenance guarantee in an amount determined by the Borough Engineer in accordance with Borough ordinance.
D. 
An "as built" plan and profiles of all utilities and roads (three black-and-white prints plus a Mylar copy to be sent to the Borough Engineer), with certification signed and sealed by a New Jersey licensed professional engineer or land surveyor as to the actual construction as approved by the Borough Engineer, shall be provided.
Where the proposed off-tract improvement is to be undertaken at a future date, funds required for the improvement shall be deposited to the credit of the Borough of Rockaway in a separate account until such time as the improvement is constructed. In lieu of a cash escrow account, developers may present irrevocable letters of credit for the term required in a form acceptable to the Borough Attorney. If the off-tract improvement is not begun within 10 years of the deposit, all monies and interest shall be returned to the applicant or the letter of credit, as the case may be, surrendered. An off-tract improvement shall be considered "begun" if the Borough of Rockaway has taken legal steps to provide for the design and financing of such improvements.
Where applications for development result in the need for off-tract improvements, the Land Use Board shall determine the scope of all such improvements. The timing and developer's pro rata share of such improvements shall be incorporated into a developer's agreement between the developer and the Borough.
A. 
Before filing of final subdivision plats or 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 pursuant to Subsection d of Section 52 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-65), the Borough requires and shall accept in accordance with the standards adopted by ordinance and regulations adopted pursuant to Section 1 of P.L. 1999, c. 68 (N.J.S.A. 40:55D-53a), for the purpose of assuring the installation and maintenance of certain on-tract improvements, the furnishing of a performance guarantee, and provision for a maintenance guarantee in accordance with Subsection A(1) and (2) as follows:
(1) 
Performance guarantee.
(a) 
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 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, or N.J.S.A. 46:26B-1 through 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.
(b) 
The applicant shall prepare and submit to the Borough Engineer for review and approval 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. The Engineer will accept or modify the amounts in that estimate as part of a report issued. The approving authority or the Borough Engineer may request that the applicant update this estimate as required.
(c) 
The performance guarantee shall be in the Borough's prescribed form of performance bond on which the developer shall be principal, and secured either by a bonding or surety company duly authorized to issue bonds in the State of New Jersey acceptable to the Borough, irrevocable letter of credit or by a certified bank or cashier's check, the proceeds of which shall be returnable to the developer without interest after full compliance by the developer with all of the requirements of this chapter and the developer's agreement.
(d) 
The developer shall be required to furnish a performance guarantee to 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. At the developer's option, a separate performance guarantee may be posted for the privately owned perimeter buffer landscaping.
(e) 
In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, 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 bond," 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, building or phase of development and which are not covered by an existing performance guarantee. Upon posting of a temporary certificate of occupancy bond, all sums remaining under a performance guarantee, required pursuant to Subsection A(1) of this section, which relate to the development, unit, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. At no time may a borough hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy bond shall be released upon the issuance of a permanent certificate of occupancy with regard to the development, unit, building, or phase as to which the temporary certificate of occupancy relates.
(f) 
In addition to a performance guarantee required pursuant to Subsection A(1) of this section, a developer shall furnish to the Borough a separate guarantee, referred to herein as a "safety and stabilization bond," in favor of the Borough, to 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: i) 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 ii) 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 bond. The Borough shall not provide notice of its intent to claim payment under a safety and stabilization bond 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. 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. In the event the safety and stabilization guarantee is posted separate from the performance bond, the Borough shall release the separate safety and stabilization guarantee upon the developer's furnishing of a performance guarantee which includes a line item for safety and stabilization in the amount required pursuant to Subsection A(1)(g) of this section below.
(g) 
The amount of a safety and stabilization bond for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000. The amount of a safety and stabilization bond 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.
(h) 
The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the governing body by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the 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.
(2) 
Maintenance guarantee.
(a) 
Prior to the release of the performance guarantee required pursuant to Subsection A(1) above, the developer shall post with the Borough a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.
(b) 
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, inflow 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).
(c) 
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.
(d) 
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, then the Borough shall not require any performance or maintenance guarantee, as the case may be, for such utilities or improvements.
B. 
Successor developer. Any party who succeeds to the interest of an original developer shall be obligated to the same degree as the original developer. If any such successor developer has furnished a replacement performance guarantee, as a condition to the approval of a permit update under the State Uniform Construction Code, for the purpose of updating the name and address of the owner of property on a construction permit, the Borough requires and shall accept the furnishing of a performance guarantee and provision for a maintenance guarantee which satisfies the requirements of this section with respect to original developer guarantees.
C. 
Guarantee liability and guarantee closeout procedures. The liability of the obligor on the performance guarantee, and the procedure to seek a reduction or closing out of the performance guarantee, shall be as set forth in N.J.S.A. 40:55D-53 et seq.
D. 
Dedication of improvements to the Borough. To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough governing body shall be deemed, upon the release of any performance guarantee required pursuant to this section, 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, as the case may be, provided that such improvements have been inspected and have received final approval by the Borough Engineer.
E. 
Developer's agreement. Prior to the issuance of building permits for any buildings in a subdivision or site plan approved under this chapter, a fully executed developer's agreement approved by the Borough and an appropriate performance bond in accordance with the terms of the developer's agreement must be submitted to the Borough.
F. 
Requirements for final approval. No final subdivision plats, final site plan approval or recording of any deed or other recorded instrument shall be approved until all items required to be bonded (on-site, off-site, on-tract and off-tract) have been installed, approved by the Borough Engineer, or their installation shall have been provided for by a performance guarantee and/or maintenance guarantee accepted and approved by the Borough Engineer. No partially completed facility shall be accepted for any item which has further stages of work or which will need to be altered or reworked due to the installation of any other facility. A performance bond for an approved site plan shall be provided.
G. 
Term of guarantees. The term of all performance and maintenance guarantees shall be from the date of the acceptance of the guarantee by the Borough.
The following improvements shall be required in addition to such other items as the Land Use Board may require in the public interest:
A. 
Streets. Streets shall be graded and constructed in accordance with the construction standards and specifications of the Borough.
B. 
Street signs. Street signs shall be of the same type and design as the street signs currently in use and shall be installed in accordance with this Code or other applicable ordinances and statutes in such a manner that the name of each intersecting street is clearly visible to approaching traffic.
C. 
Curbs and gutters. Belgian block curbs and gutters shall be constructed in accordance with the construction standards and specifications of the Borough.
D. 
Catch basins. Catch basins shall be constructed in accordance with the construction standards and specifications of the Borough.
E. 
Sidewalks. Concrete sidewalks shall be on both sides of each street, unless a variation for cause is allowed by the Land Use Board and shall be of sufficient width to accommodate the maximum pedestrian traffic, but in no case less than four feet in width and constructed in accordance with the construction standards and specifications of the Borough.
F. 
Topsoil protection. No topsoil shall be removed from the subdivision or site or used as spoil or fill. Topsoil removed during the course of construction shall be redistributed in the subdivision so as to provide equal distribution of cover to all areas of the subdivision and shall be stabilized by seeding and planting. At least six inches of topsoil shall be provided on all portions of lots not occupied by buildings or walks.
G. 
Earth removal. No permanent change shall be made in the elevation or contour of any lot or site by the removal of earth either to another lot or site or to another part of the same site, other than that resulting from changes in elevation and contours approved by the Board, as shown on the preliminary and final plat and profiles and grading plans.
H. 
Monuments. Monuments are to be of the size and shape required by N.J.S.A. 46:23-9.11[1] and shall be placed in accordance with the requirements of such statute and specifications of the Borough.
[1]
Editor's Note: N.J.S.A. 46:23-9.11 was repealed by P.L. 2011, c. 217, effective 5-1-2012. See now N.J.S.A. 46:26A-5, 46:26B-2 and 46:26B-3.
I. 
Culverts, storm drains and sewers and utilities. Provision shall be made for culverts, stormwater drains, sanitary waste disposal and utilities. All such installations shall be connected with an approved system which shall be adequate for all present and future development of the subdivision and surrounding areas and shall be made in accordance with the construction standards and specifications of the Borough, county and sewerage authority, where applicable.
J. 
Fire hydrants. Fire hydrants shall be installed in accordance with the standards and specifications of the Water Utility and Fire Department. All hydrants shall be placed at or near street intersections or at property lines in such a manner as to least interfere with the use of street and property.
K. 
Water mains. Water mains shall be installed in accordance with the standards and specifications of the Borough.
L. 
Disposal of dead trees. All stumps, litter, rubbish, brush, weeds, dead and dying trees, roots and debris shall be removed from the site. Burying is prohibited.
M. 
Shade trees. As applicable, all shade trees shall be removed and replanted pursuant to Chapter 170, Land Use Design and Performance Standards, Article V, Tree Conservation and Protection.
N. 
Grades. All construction stakes and grades shall be set by a licensed surveyor employed by the subdivider.
O. 
Construction standards. All standards and specifications of the Borough shall govern the construction and installation of all improvements.
Where the need for off-tract improvements for water, sewer, drainage and street improvements and for other improvements as provided by law are, in whole or in part, made necessary by the application, a determination of the contribution of the applicant for said off-tract improvements shall be made.
A. 
Allocation of costs; criteria in determining allocation. The allocation of costs for off-tract improvements as between the applicant, other property owners and the Borough or any one or more of the foregoing shall be determined by the Land Use Board, with the assistance of the appropriate Borough agencies, on the basis of the total costs of the off-tract improvements, the needs created by the application, population and land use projections for the general area of the applicant's property and other areas to be served by the off-site improvements, the estimated time of construction of the off-site improvements and the condition and periods of usefulness, which periods may be based upon the criteria of N.J.S.A. 40A:2-22. Requirements for off-tract improvements shall be consistent with N.J.S.A. 40:55D-42. In addition, the following criteria may also be considered, as well as any other reasonable criteria the Board feels is necessary to protect the health, safety and general welfare of the Borough:
(1) 
Streets, curbs, sidewalks, shade trees, streetlights, street signs and traffic light improvements may also be based upon the anticipated increase of traffic generated by the application. In determining such traffic increase, the Land Use Board may consider traffic counts, existing and projected traffic patterns, quality of roads and sidewalks in the area and other factors related to the need created by the application and the anticipated benefit thereto.
(2) 
Drainage facilities may also be based upon or be determined by the drainage created by or affected by a particular land use based on:
(a) 
The rate, quality and volume of water discharged from the site post development.
(b) 
The use, condition or status of the remaining area in the drainage basin.
(3) 
Water supply and distribution facilities may also be based upon the added facilities required by the total anticipated water use requirements of the applicant and other properties in the general area benefiting therefrom.
(4) 
Sewerage facilities may be based upon the proportion that the total anticipated volume of sewage effluent of the applicant's property and other properties connected to the new facility bears to the existing capacity of existing sewerage facilities, including but not limited to lines and other appurtenances leading to and servicing the applicant's property. Consideration may also be given to the types of effluent and particular problems requiring special equipment or added costs for treatment. The Rockaway Valley Regional Sewer Authority and/or the Borough may make this assessment as a condition of approval.
B. 
Determination of cost of improvements. The cost of installation of the required off-tract improvements shall be determined by the Land Use Board with the advice of the Borough Engineer and appropriate Borough agencies.
C. 
Manner of construction. When those estimates are received, the Mayor and Borough Council shall then decide whether the off-tract improvement is to be constructed:
(1) 
By the Borough as a general improvement.
(2) 
By the applicant at its sole cost and expense.
(3) 
By the applicant under a formula providing for partial reimbursement by the Borough for benefits to properties other that the subject property.
D. 
Amount of contribution.
(1) 
If the improvement is to be constructed by the Borough as a general improvement, the applicant shall be required to provide a cash deposit to the Borough equal to the applicant's pro-rata fair share of the improvement.
(2) 
If the improvement is to be constructed by the applicant, then it shall be consistent with the developer's agreement.
E. 
Payment of allocated cost.
(1) 
The estimated costs of the off-tract improvement allocated to the applicant if deposited in cash shall be paid by the applicant to the Borough Treasurer, who shall provide a suitable depository therefor, and such funds shall be used only for the off-tract improvements for which they are deposited or improvements serving the same purpose, unless such improvements are not initiated by the Borough within a period of 10 years from the date of payment, after which time said funds so deposited shall be returned, together with accumulated interest or other income thereon, if any.
(2) 
In the event that the payment by the applicant to the Borough Treasurer provided for herein is less than its share of the actual cost of the off-tract improvements, and the developer has not completed its development, then it shall be required to pay its appropriate share of the cost thereof.
(3) 
In the event that the payment by the applicant to the Borough Treasurer provided for above is more than its appropriate share of the actual cost of installation of the off-tract improvements, it or its successor or assigns shall be repaid an amount equal to the difference between the deposit and its share of the actual cost.
(4) 
If the applicant shall deem that any of the amounts so estimated by the Land Use Board are unreasonable, it may challenge them and seek to have them revised in appropriate proceedings brought to compel subdivision or site plan approval.
(5) 
If the applicant and the Land Use Board cannot agree with respect to the applicant's fair share of the actual cost of the off-tract improvement or the determination made by the officer or Board charged with the duty of making assessments as to special benefits, if the off-tract improvement is to be constructed as a local improvement, no approval shall be granted; provided, however, that the applicant may challenge such determination and seek to have it revised in appropriate judicial proceedings in order to compel subdivision or site plan approval.
F. 
Installation of improvements by applicant. At the discretion and option of the Borough and with the consent of the applicant, the Borough may enter into a contract with the applicant providing for the installation and construction of the off-tract improvements by the applicant upon contribution by the Borough of the remaining unallocated portion of the cost of the off-tract improvement.
G. 
Compliance with design criteria. Should the applicant and the Borough enter into a contract for the construction and erection of the off-tract improvements to be done by the applicant, it shall observe all requirements and principles of this chapter in the design of such improvements.
A. 
Where the applicant is to install, the estimated proportionate costs of the off-tract improvements, as allocated to the applicant, shall be paid to the Borough. The funds will be deposited in an interest-bearing account created solely for off-tract improvement moneys. The Borough shall, from time to time, review such account and, where sufficient time has passed to warrant the return of these moneys, it shall rescind all prior approvals and return, with interest, those prior-deposited moneys which have not in whole or part been used because of the failure to proceed with the improvement.
B. 
If it becomes apparent that the applicant has paid either more or less than the actual allocable cost of the improvement, the Borough shall repay or seek payment of the actual difference between the cost and the moneys already paid.
C. 
Where it has been determined that the improvements will be installed as a general or local Borough improvement by the Borough, the financing and payment thereof shall be in accordance with state statutes.
D. 
In all other instances, the Borough may contract with the applicant for both installation and payment to the applicant. The Borough's contribution shall be in an amount and shall be paid pursuant to the terms of the contract. This contract, however, shall in no way relieve the applicant or the Borough from compliance with Land Use Board approvals not otherwise legally overruled by the Borough or local, county or state laws.
[Amended 2-27-2025 by Ord. No. 25-03]
A. 
Findings and purpose.
(1) 
In Holmdel Builder's Ass'n v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.
(2) 
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7), COAH was authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or a court of competent jurisdiction and have an approved spending plan may retain fees collected from nonresidential development.
(3) 
This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32-38. Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's prior round rules on development fees, codified at N.J.A.C. 5:93-8[1] and P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7).
[1]
Editor's Note: Chapter 93 of the New Jersey Administrative Code expired 10-16-2016.
B. 
Basic requirements.
(1) 
This section shall not be effective until approved by the Court.
(2) 
The Borough of Rockaway shall not spend development fees until the Court has approved a plan for spending such fees in conformance with N.J.A.C. 5:93-5.1(c).[2]
[2]
Editor's Note: Chapter 93 of the New Jersey Administrative Code expired 10-16-2016.
C. 
Definitions. The following terms, as used in this section, shall have the following meanings:
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100%-affordable development.
COAH or THE COUNCIL
The New Jersey Council on Affordable Housing established under the Fair Housing Act.
DEVELOPER
The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:93-8.[3]
EQUALIZED ASSESSED VALUE
The assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with Sections 1, 5 and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
GREEN BUILDING STRATEGIES
Those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.
[3]
Editor's Note: Chapter 93 of the New Jersey Administrative Code expired 10-16-2016.
D. 
Residential development fees.
(1) 
Imposed fees.
(a) 
Within all zoning district(s), residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1.5% of the equalized assessed value for residential development, provided no increased density is permitted.
(b) 
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application. Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1.5% of the equalized assessed value on the first two units; and the specified higher percentage up to 6% of the equalized assessed value for the two additional units, provided zoning on the site has not changed during the two-year period preceding the filing of such a variance application.
(c) 
Eligible exactions, ineligible exactions, and exemptions for residential development.
[1] 
Affordable housing developments and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.
[2] 
Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.
[3] 
Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, is demolished and replaced, unless the owner resided in the previous dwelling for a period of one year or more prior to obtaining a demolition permit, or is expanded, if the expansion is not otherwise exempt from the development fee requirement. The development fee shall be calculated on the increase in the equalized assessed value of the improved or replaced structure as compared to the previous structure.
[4] 
Homes replaced as a result of a natural disaster (such as a fire or flood) shall be exempt from the payment of a development fee.
E. 
Nonresidential development fees.
(1) 
Imposed fees.
(a) 
Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted below, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.
(b) 
Nonresidential developers, except for developers of the types of development specifically exempted below, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.
(c) 
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e., made an improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
(2) 
Eligible exactions, ineligible exactions, and exemptions for nonresidential development.
(a) 
The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to the development fee of 2.5%, unless otherwise exempted below.
(b) 
The fee of 2.5% shall not apply to an increase in equalized assessed value resulting from alterations, change in use within the existing footprint, reconstruction, renovations and repairs.
(c) 
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF, "State of New Jersey Non-Residential Development Certification/Exemption" form. Any exemption claimed by a developer shall be substantiated by that developer.
(d) 
A developer of a nonresidential development exempted from the nonresidential development fee pursuant to P.L. 2008, c. 46, shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.
(e) 
If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Borough of Rockaway as a lien against the real property of the owner.
F. 
Collection procedures.
(1) 
Upon the granting of a preliminary, final or other applicable approval, for a development, the applicable approving authority shall direct its staff to notify the construction official responsible for the issuance of a building permit.
(2) 
For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF, "State of New Jersey Non-Residential Development Certification/Exemption," to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The construction official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The tax assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.
(3) 
The construction official responsible for the issuance of a building permit shall notify the local tax assessor of the issuance of the first building permit for a development which is subject to a development fee.
(4) 
Within 90 days of receipt of that notice, the municipal tax assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.
(5) 
The construction official responsible for the issuance of a final certificate of occupancy notifies the local assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.
(6) 
Within 10 business days of a request for the scheduling of a final inspection, the municipal assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.
(7) 
Should the Borough of Rockaway fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in Subsection b of Section 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
(8) 
Except as provided in Subsection E(1)(c) above, 50% of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at building permit and that determined at issuance of certificate of occupancy.
(9) 
Appeal of development fees.
(a) 
A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by the Borough of Rockaway. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
(b) 
A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by the Borough of Rockaway. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
G. 
Affordable housing trust fund.
(1) 
There is hereby created a separate, interest-bearing housing trust fund to be maintained by the Borough of Rockaway Chief Financial Officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
(2) 
The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:
(a) 
Payments in lieu of on-site construction of affordable units;
(b) 
Developer contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;
(c) 
Rental income from municipally operated units;
(d) 
Repayments from affordable housing program loans;
(e) 
Recapture funds;
(f) 
Proceeds from the sale of affordable units; and
(g) 
Any other funds collected in connection with the Borough of Rockaway's Affordable Housing Program.
(3) 
Within seven days from the opening of the trust fund account, the Borough of Rockaway shall provide the State of New Jersey, Department of Community Affairs, Division of Local Government Services with written authorization, in the form of a three-party escrow agreement between the municipality, the bank, and NJDCA-LGS to permit NJDCA-LGS to direct the disbursement of the funds as provided for in N.J.A.C. 5:93-8.15, 5:93-8.18 and 5:93-8.19.[4] This requirement shall be deemed to have been satisfied by a previously executed three-party escrow agreement with COAH, provided the bank remains the same as in the original agreement.
[4]
Editor's Note: Chapter 93 of the New Jersey Administrative Code expired 10-16-2016.
(4) 
All interest accrued in the housing trust fund shall only be used on eligible housing activities approved by the Court.
H. 
Use of funds.
(1) 
The expenditure of all funds shall conform to a spending plan approved by the Court. Funds deposited in the housing trust fund may be used for any activity approved by the Court to address the Borough of Rockaway's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to: preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost-saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:93-8.16[5] and specified in the approved spending plan.
[5]
Editor's Note: Chapter 93 of the New Jersey Administrative Code expired 10-16-2016.
(2) 
Funds shall not be expended to reimburse the Borough of Rockaway for past housing activities.
(3) 
At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.
(a) 
Affordability assistance programs may include down payment assistance, security deposit assistance, low-interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs.
(b) 
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the municipal Fair Share Plan to make them affordable to households earning 30% or less of median income.
(c) 
Payments in lieu of constructing affordable units on-site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
(4) 
The Borough of Rockaway may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance.
(5) 
No more than 20% of all revenues collected from development fees may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualificaton of households, monitoring the turnover of sale and rental units, and compliance with the reporting and monitoring requirements that have been approved by the Court. Legal or other fees related to litigation opposing affordable housing sites or objecting to or appealing the Court's approval of Rockaway's Housing Element and Fair Share Plan are not eligible uses of the Affordable Housing Trust Fund.
I. 
Monitoring. On an annual basis commencing with the first anniversary of the entry of the Order granting a Final Judgment of Compliance and Repose to Rockaway, the Borough of Rockaway shall report all activity in connection with its Affordable Housing Trust Fund to the New Jersey Department of Community Affairs [either the Division of Local Government Services or the Council on Affordable Housing (COAH), whichever entity is designated by the State of New Jersey], with a copy provided to Fair Share Housing Center and to the Intervenors/Defendants IMO the Application of the Borough of Rockaway for a Final Judgment of Compliance and Repose of its Obligations Under the Fair Housing Act and Approval of its Amended Spending Plan, Docket No.: PAS-L-2348-15, and with a posting of same on the municipal website, using forms previously developed for this purpose by COAH. The reporting shall include all sources and amounts collected/earned and the amounts and purposes for which funds have been expended.
J. 
Ongoing collection of fees.
(1) 
The ability for the Borough of Rockaway to impose, collect and expend development fees shall expire with its Judgment of Compliance and Repose unless the Borough of Rockaway has filed an adopted Housing Element and Fair Share Plan with the Court or with COAH or its successor agency designated by the State of New Jersey, has petitioned for a Judgment of Compliance and Repose or substantive certification, and has received the Court's or COAH's approval of its development fee ordinance. If the Borough of Rockaway fails to renew its ability to impose and collect development fees prior to the expiration of its Judgment of Compliance and Repose, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Borough of Rockaway shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its Judgement of Compliance and Repose, nor shall the Borough of Rockaway retroactively impose a development fee on such a development. The Borough of Rockaway shall not expend development fees after the expiration of its Judgment of Compliance and Repose.
(2) 
It is the intent of the Borough Council to incorporate the additions, amendments and/or supplements contained in this ordinance into the Code.
A. 
All detention/retention basins for stormwater drainage in any multifamily residential use development or nonresidential use developments shall be owned and maintained by a condominium, homeowners' association or other private individual or group. All detention/retention basins for stormwater drainage located within or as a part of a solely single-family residential use development shall be dedicated to the Borough of Rockaway. Prior to the acceptance of any stormwater facility by the Borough of Rockaway, same shall be certified by the Borough Engineer to have been constructed in accordance with the requirements and specifications of this section. In addition, prior to the issuance of any certificate of occupancy, the developer shall post with the Borough of Rockaway an escrow deposit in an amount to be determined in accordance with the formula set forth below to pay the cost of maintenance of the detention basin for 10 years from the date of the establishment of the escrow deposit pursuant to the terms set forth in § 169-63. Such escrow deposit shall be utilized for the maintenance of such detention/retention facility.
B. 
Technical standards for the construction of improvements.
(1) 
The fees set forth below shall be for the purpose of reimbursing the Borough for direct fees, costs, charges and expenses for the maintenance of a detention/retention facility, including but not limited to routine mowing, maintenance of landscaping, general maintenance concerning inlets, cleaning of property and long-range maintenance on a periodic basis.
(2) 
The escrow amount shall be deposited with the Borough prior to the issuance of any certificates of occupancy. All funds shall remain in an interest-bearing escrow account. The entire amount of any interest shall be applied to the purposes for which it was originally deposited.
(3) 
All costs, expenses, charges and fees incurred by the Borough for the maintenance of a detention/retention basin shall be charged against the escrow fund established for the maintenance of such a basin.
(4) 
The Borough will conduct maintenance programs at its discretion and shall maintain liability insurance on the basin out of the funds so created. The maintenance programs may include:
(a) 
Routine mowing of the property. Mowing costs shall be estimated at the rate of one acre per hour. The cost per hour for the Borough labor and equipment shall be multiplied by the number of acres to be mowed. A base number shall also be included for the mobilization and the maintenance of the equipment. The annual mowing cost per year shall be calculated by multiplying the number of mowings per year by the cost per mowing, plus materials.
(b) 
Maintenance of landscaping. The cost shall be based upon the number of hours for landscape maintenance multiplied by a rate per hour for labor and equipment. Any and all additional stock or materials which shall be necessary to replace approved landscaping shall also be charged against the fund.
(c) 
General maintenance. The cost for general maintenance shall be based upon a one-hour mobilization time together with the total number of hours expended times the rate per hour for Borough labor and equipment. The general maintenance annual cost shall be calculated by multiplying the number of times maintenance is anticipated to be performed by the cost for general maintenance.
(d) 
Long-term maintenance. The long-term maintenance shall be calculated on cost per acre, multiplied by the number of acres, and applied against the assumption that a residential detention/retention basin needs rejuvenation every 15 years and a commercial basin every eight years. These amounts are reduced thereto an annualized cost by multiplying the cost per time of maintenance by a duration factor of 0.126 or 0.066 for commercial and residential properties, respectively.
(e) 
Insurance. The Borough shall assume liability for the property and a portion of the fund shall be used for purchase of insurance for the detention/retention basin.
(5) 
Calculation of the developer fund. The amount of money to be placed in escrow shall be calculated in accordance with Subsection B(4)(a) through (e) above. The first-year costs [the sum of Subsecton B(4)(a) through (e) above] are multiplied by the factor of 13.96, the product of which is then added to the first-year maintenance cost to obtain the total developer contribution for detention basin maintenance. Said calculation provides for the Borough to receive sufficient funding for 10 years based upon an assumption of a 6% increase per year and 5.5% return on investment earnings added to the account. The cost for the maintenance by the Borough employees shall be based upon the amount of time services are performed and the unit (i.e., per diem or hourly fee) of the professional, expert, employee or staff in accordance with the contracts or as prescribed by the Salary Ordinance of the Borough of Rockaway.[1]
[1]
Editor's Note: Said Salary Ordinance is on file in the Borough offices.
A. 
The application fee to obtain permission for soil disturbance shall be submitted with the application as follows:
(1) 
For less than 500 cubic yards of soil: $200 plus $0.10 per cubic yard.
(2) 
For more than 500 cubic yards of soil: $500 plus $0.10 per cubic yard.
B. 
Prior to issuance of a soil disturbance permit and approval of same by the Borough Council or Borough Engineer, the applicant shall pay a permit fee as per the following schedule:
Soil Movement
Fee
(per cubic yard)
Movement of soil within the same site
$0.10
Exportation of soil from the site
$0.25 (includes $0.10 for movement)
Importation of soil from location outside site
$0.25 (includes $0.10 for movement)
C. 
The applicant shall also be responsible for payment of engineering and legal review and inspection fees and shall submit the following escrow fees at the time the application is made:
(1) 
For less than 500 cubic yards of soil: $500.
(2) 
For more than 500 cubic yards of soil: $1,000.
D. 
Exemption from fees. The Morris Hills Regional School District Board of Education and the Rockaway Borough Board of Education may be exempt from the requirements of soil disturbance and soil movement fees at the discretion of and upon application to the Borough Council.