The power to regulate land use is set forth in R.S. 40:55D-1 et seq.
[Ord. 276]
This chapter shall be known and may be cited as The Land Use Procedures Ordinance of the Borough of Hopewell.
There is hereby established pursuant to C. 291. P.L. 1975, R.S. 40:55D-1 et seq., a planning board of nine members consisting of the following four classes, and such alternates as permitted by law.
Class I. The mayor.
Class II. One of the officials of the borough other than a member of the borough council to be appointed by the mayor; provided that if there is an environmental commission, the member of the environmental commission, who is also a member of the planning board as required by R.S. 40:56A-1 shall be deemed to be the Class II planning board member if there is a member of the board of education among the Class IV members, or alternates.
Class III. A member of the borough council to be appointed by it.
Class IV. Six other citizens of the borough to be appointed by the mayor. The members of Class IV shall hold no other borough office, position or employment, except that one member may be a member of the board of education or historic preservation commission. A member of the environmental commission who is also a member of the planning board as required by R.S. 40:56A-1 shall be a Class IV planning board member unless there be among the Class IV or alternate members of the planning board both a member of the historic preservation commission and a member of the board of education, in which case the member of the environmental commission shall be deemed to be the Class II member of the planning board.
Alternate Members. There shall be two alternate members of the planning board to be appointed by the mayor. Alternate members shall meet the qualifications of Class IV members of the planning board. Alternate members shall be designated at the time of appointment by the mayor as Alternate No. 1 and Alternate No. 2. The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. A vacancy occurring otherwise than by expiration of term shall be filled by the mayor for the unexpired term only.
The term of the member composing Class I shall correspond with his official tenure. The terms of the members composing Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the environmental commission. The term of a Class II or a 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 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 terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent, the expiration of such terms shall be evenly distributed over the first four years after their appointment as determined by resolution of the borough council, provided, however, that no term of any member shall exceed four years and further provided that nothing herein shall affect the term of any present member of the planning board, all of whom shall continue in office until the completion of the term for which they were appointed. Thereafter, all Class IV members shall be appointed for terms of four years except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made. Any member other than a Class I member, after a public hearing, if he requests one, may be removed by the borough council for cause.
If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as provided in subsection 10A-2.2 for the unexpired term.
The planning board shall elect a chairman and vice chairman from the members of Class IV and select a secretary who may be either a member of the planning board or a borough employee designated by it.
There is hereby created the office of planning board attorney. The planning board may annually appoint, fix the compensation of or agree upon the rate of compensation of the planning board attorney who shall be an attorney other than the borough attorney.
The planning board may also employ or contract for the services of experts and other staff and services as it may deem necessary. The board shall not, however, exceed, exclusive of gifts or grants, the court appropriated by the borough council for its use.
The 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, R.S. 2A:67A-1, et seq., shall apply. It shall also have the following powers and duties:
a. 
To make and adopt and from time to time amend a master plan for the physical development of the borough including any areas outside its boundaries, which in the board's judgment bear essential relation to the planning of the borough, in accordance with the provisions of R.S. 40:55D-28.
b. 
To administer the provisions of the land subdivision ordinance and site plan review ordinance of the borough in accordance with the provisions of such ordinances and the Municipal Land Use Law, Chapter 291, P.L. 1975, R.S. 40:55D-37.
c. 
To approve conditional use applications in accordance with the provisions of the zoning ordinance pursuant to R.S. 40:55D-67.
d. 
To participate in the preparation and review of programs or plans required by state or federal law or regulations.
e. 
To assemble data on a continuing basis as a part of a continuous planning process.
f. 
To annually prepare a program of borough capital improvement projects projected over a term of six years, and amendments thereto, and recommend such to the borough council, pursuant to R.S. 40:55D-29.
g. 
To consider and make report to the borough council within 35 days after referral as to any proposed development regulations revision or amendment thereto, and as to any official map or an amendment or revision thereto, submitted to it pursuant to the provision of N.J.S.A. 40:55D-26(a), and also 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).
h. 
To exercise, to the same extent and subject to the same restrictions all the powers of a board of adjustment pursuant to N.J.S.A. 40:55D-25(c). When the planning board considers applications for development which involve relief pursuant to subsection d of Section 57 of P.L. 1975, c. 291 (C. 40:55D-70), the Class I and Class III members shall not participate in the consideration of said application for development.
i. 
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 other agencies or officers.
j. 
At the request of the developer, the planning board shall grant an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for development. The developer shall not be required to submit any fees for such an informal review; however, no professional review will be undertaken unless the developer agrees to deposit funds in an escrow account in an agreed amount and to pay professional review costs relating to the informal review. In accordance with subsection 10A-4.4c, the developer shall execute an escrow agreement to authorize a payment of said professional review costs. The developer shall not be bound by any concept plan for which review is requested and the planning board shall not be bound by such review.
k. 
To inform all commercial, industrial and institutional establishments making application to the planning board of the requirements of the Mercer County Source Separation and Recycling Plan pursuant to subsection 3-19.1.e.
a. 
Minor Subdivisions. Minor subdivision approvals shall be granted or denied within 45 days of the date of submission of a complete application to the administrative officer or within such further time as may be consented to by the applicant. Approval of a minor subdivision shall expire 190 days from the date on which the resolution of municipal approval is adopted unless within such period a plat in conformity with such approval and the provisions of the "Map Filing Law", or a deed clearly describing the approved minor subdivision, is filed by the developer with the county recording officer, the borough engineer and the borough tax assessor. Any such plat or deed shall be signed by the chairman and secretary of the planning board before it will be accepted for filing by the county recording officer.
The planning board may extend the 190-day period for filing a minor subdivision plat or deed if the developer proves to the reasonable satisfaction of the planning board: (1) that the developer 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 (2) that the developer 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. The developer may apply for the extension either before or after what would otherwise be the expiration date.
The planning board shall grant an extension of minor subdivision approval for a period determined by the board but not exceeding one year from what would otherwise be the expiration date, if the developer proves to the reasonable satisfaction of the board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued the required approvals. A developer shall apply for the extension before (1) what would otherwise be the expiration date of minor subdivision approval or (2) the 91st day after the developer receives the last legally required approval from other governmental entities, whichever occurs later.
b. 
Preliminary Approval Major Subdivisions. Upon submission of a complete application for a subdivision of 10 or fewer lots, the planning board shall grant or deny preliminary approval within 45 days of the date of such submission or within such further time as may be consented to by the developer. Upon submission of a complete application for a subdivision of more than 10 lots, the planning board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the planning board shall be deemed to have granted preliminary approval for the subdivision.
c. 
Final Approval. Application for final subdivision approval shall be granted or denied within 45 days of submission of a complete application or within such further time as may be consented to by the applicant.
Final approval of a major subdivision shall expire 95 days from the date of signing of the plat unless within such period the plat shall have been duly filed by the developer 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 190 days from the date of signing of the plat. The planning board may extend the ninety-five-day or 190-day period if the developer proves to the reasonable satisfaction of the planning board (1) that the developer 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 (2) that the developer applied promptly for and diligently pursued the required approvals. The length of extension shall be equal to the period of delay caused by the wait for the required approvals, as determined by the planning board. The developer may apply for an extension either before or after the original expiration date.
Applications for development within the jurisdiction of the planning board pursuant to the provisions of C. 291, P.L. 1975, R.S. 40:55D-1 et seq., shall be filed with the secretary of the planning board. The applicant shall file, at least 21 days before the date of the monthly meeting of the board:
a. 
Fifteen copies of a sketch plat.
b. 
Fifteen copies of applications for minor subdivision approval.
c. 
Fifteen copies of applications for major subdivision approval.
d. 
Fifteen copies of an application for site plan review, conditional use approval, or planned development.
At the time of filing the application, but in no event less than 10 days prior to the date set for hearing the application, the applicant shall also file all plot plans, maps or other papers required by virtue of any provision of this chapter or any rule of the planning board. The applicant shall obtain all necessary forms from the secretary of the planning board. The secretary of the board shall inform the applicant of the steps to be taken to initiate applications and of the regular meeting dates of the board.
The mayor may appoint one or more persons as a citizens advisory committee to assist or collaborate with the planning board in its duties, but such person or persons shall have no power to vote or take other action required of the board. Such person or persons shall serve at the pleasure of the mayor.
Whenever the environmental commission has prepared and submitted to the planning board an index of the natural resources of the borough, the planning board shall make available to the environmental commission an informational copy of every application for development to the planning board. Failure of the planning board to make such informational copy available to the environmental commission shall not invalidate any hearing or proceeding.
a. 
Pursuant to N.J.S.A. 40:55D-10.3, the Secretary of the Hopewell Borough Planning Board shall review every application for development for conformity with the requirements of the Hopewell Borough Planning Board's General Checklist for Complete Development.
b. 
The secretary's finding regarding the completeness of any application for development shall be conveyed, by the secretary to the submitting applicant within the time provided by N.J.S.A. 40:55D-10.3.
a. 
The powers of the planning board, acting as a zoning board of adjustment, shall be in accordance with R.S. 40:55D-70, et seq., and amendments and supplements thereto, and with the provisions of this-chapter.
b. 
It is further the intent of this chapter to confer upon the planning board, acting as a zoning board of adjustment, as full and complete powers as may lawfully be conferred upon such board, including, not by way of limitation, the authority, in connection with any case, action or proceeding before the board to interpret and construe the provisions of this section or any term, clause, sentence or word hereof, and the zoning map, in accordance with the general rules of construction, applicable to legislative enactments.
c. 
The board may, in appropriate cases and subject to appropriate conditions and safeguards grant variances from the terms of this chapter in accordance with the general or specific rules contained herein and with the general rules hereby laid down that equity shall be done in cases where the strict construction of the provisions of this chapter would work undue hardship. The powers and duties of the board having been delegated to and imposed upon it by statute, the board shall in all cases follow the provisions applicable to it in Chapter 291, P.L. 1975, R.S. 40:55D-1 et seq., or subsequent statutes in such case made and provided, and it shall from time to time furnish to any person requesting the same a copy of its rules and information as to how appeals or applications may properly be filed with the board for its decision thereon.
a. 
Appeals. Appeals to the planning board, acting as a board of adjustment, may be taken by any interested party affected by any decision of an administrative office of the municipality based on or made in the enforcement of the zoning ordinance or official map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken together with 15 copies of such notice with the secretary of the planning board. The notice of appeal shall specify the grounds for such 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. 
Applications. Applications addressed to the original jurisdiction of the planning board, acting as a board of adjustment, without prior application to an administrative officer shall be filed with the secretary of the planning board. Eighteen copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps, or other papers required by virtue of any provision of this chapter or any rule of the board of adjustment. The applicant shall obtain all necessary forms from the secretary of the planning board. The secretary of the planning board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the board. All commercial, industrial and institutional establishments, including builders, contractors, and/or developers making application to the planning board, acting as a zoning board of adjustment, shall be notified of the requirements of the Mercer County Source Separation and Recycling Plan pursuant to subsection 3-19.1 e.
c. 
Stay of Proceedings. An appeal stays all proceedings in furtherance of the action in respect of which the decision appealed from was made, unless the officer, from whom the appeal is taken certifies to the planning board, after the notice of appeal shall have been filed with the officer, that by reason of facts stated in the certificate a stay would, in his 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 planning board, acting as a board of adjustment, or by the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.
In exercising the above-mentioned power, the planning board, acting as a board of adjustment, may, in conformity with the provisions of C. 291, P.L. 1975, R.S. 40:55D-1 et seq. or amendments thereto, or subsequent statutes applying, reverse or affirm wholly or partly or may modify the order, requirement, decision, or determination appealed from, and make such other requirement, decision or determination as ought to be made, and to that end have all the powers of the administrative officer from whom the appeal was taken.
Any variance from the terms of this chapter hereafter granted by the planning board, acting as a board of adjustment, permitting the erection or alteration of any structure or structures, or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by such variance, or unless such permitted use has actually been commenced, within one year from the date of publication of the notice of the judgment or determination of the planning board; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the planning board to the borough council, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.
The planning board, acting as a zoning board of adjustment, shall, in addition to the powers specified in subsection 10A-3.6, have power given by law to:
a. 
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32.
b. 
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
The planning board, acting as a board of adjustment, shall render its decision not later than 120 days after the date (1) an appeal is taken from the decision of an administrative officer or (2) submission of a complete application for development to the board pursuant to the provisions of R.S. 40:55D-72 (b).
Failure of the board to render a decision within such 120-day period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
Whenever review or approval of the application by the county planning board is required by section 5 of P.L. 1968, c. 285 (C.40:27-6.3), in the case of a subdivision, or section 8 of P.L. 1968, c. 285 (C.40:27-6.6), in the case of a site plan, the planning board, acting as a board of adjustment, shall condition any approval that it grants upon timely receipt of a favorable report on the application by the county planning board or approved by the county planning board by its failure to report thereon within the required time.
An application under this section may be referred to any appropriate person or agency, for its report, provided that such reference shall not extend the period of time within which the planning board, acting as a zoning board of adjustment, shall act.
No member of the planning board shall act on any matter in which he has either directly or indirectly any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the board on the hearing of such matter nor participate in any discussion or decision relating thereto.
a. 
Scheduled Meetings. Meetings of the planning board shall be scheduled no less often than once a month and any meeting so scheduled shall be held as scheduled unless cancelled for lack of applications for development to process.
b. 
Special Meetings. Special meetings may be provided for at the call of the chairman or on the request of any two board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.
c. 
Quorum Required. No action shall be taken at any meeting without a quorum being present.
d. 
Majority Vote of Quorum. All actions shall be taken by a majority vote of the members of the municipal agency present at the meeting except as otherwise required by Sections 23, 25, 49, 50 and Subsections 8e, 17a, 17b, and 57d, of the New Jersey Municipal Land Use Law. Failure of a motion to receive the number of votes required to approve an application for development pursuant to the exceptional vote requirements of Section 25 or Subsection 57d of said law shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.
A meeting may be adjourned for lack of a quorum by a majority vote of those present. A member of a municipal agency who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided however, that such board member has available to him the transcript or recording of all of the hearings from which he was absent, and certifies in writing to the board that he has read such transcript or listened to such recording.
e. 
Open to Public. 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 Meeting Law, Chapter 231. P.L. 1975. R.S. 10:4-1 et seq.
Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the board and of the persons appearing by attorney, the action taken by the board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the borough clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party may be charged a fee for reproduction of the minutes for his use as provided for in the rules of the board.
[Ord. 276, Art. III, S 4; Ord. 349, S 1 A; Ord. 369, S 1 K; Ord. 383, S 1 A; Ord. 406, S 1; Ord. 415, S 1; Ord. 436, S 1; Ord. 443, S 1; Ord. 452, S 1; Ord. 479, S 1; Ord. 498, S 1; Ord. 511, S 2; Ord. 550, S 1; Ord. 584, S 1; Ord. 621, S 1; Ord. 641, SS 1, 2; Ord. 674, S 1; Ord. 690, S 1; Ord. 691, S 3; Ord. No. 694, S 1; Ord. 740; Ord. No. 787; Ord. No. 807; amended 3-5-2026 by Ord. No. 910]
a. 
Whenever an application for development to the planning board is permitted or required by this chapter, it shall be in such form, and submitted to the secretary of the planning board in such number of copies, and accompanied by such maps, documents and materials as are prescribed by rule of the board and by this chapter and shall include all items and information specified on the checklist entitled "General Checklist for Complete Development Applications, Borough of Hopewell, Mercer County, N.J." dated November 14, 1988, revised July 1989, adopted by reference by the borough governing body, pursuant to N.J.S.A. 40:55D-10.3, for purposes of determining whether the application is complete.
b. 
Each such application for development shall be accompanied by payment of a fee to the municipality as follows:
Application
Application Fee
Plus
Escrow Account
Subdivisions
Minor
$400
$3,000 (per lot)
Major (Preliminary Approval)
$600
$3,000 (per lot)
Major (Final Approval)
$400
$3,000 (per lot)
Resubmission of Incomplete Application
$300
None required
Concept Plan
$300 (To be credited toward escrow charges for development application)
$800 (To be credited toward escrow charges for development application)
Site Plans
Preliminary Site Plan
$600
$0.20 per square foot being disturbed, provided a minimum of $2,000 shall be deposited
Final Site Plan
$600
$0.10 per square foot being disturbed, provided a minimum of $2,000 shall be deposited
Sketch Site Plan
$300 (To be credited toward escrow charges for development application)
$800 (To be credited toward escrow charges for development application)
Minor Site Plan
$400
$0.20 per square foot being disturbed, provided a minimum of $500 shall be deposited
Waived Site Plan
$250
$3,000
Resubmission of Incomplete Application
$150
None required
Variances
Appeal (40:55D-70a)
Residential
$200
$2,000
Nonresidential
$400
$3,000
Interpretation (40:55D-70b)
Residential
$200
$2,000
Nonresidential
$300
$3,000
Bulk Variance (40:55D-70c)
Residential
$250
$3,000
Nonresidential
$400
$3,500
Use Variance (40:55D-70d)
$500
$5,000
Conditional Use Approval
Residential
$300
$3,000
Nonresidential
$400
$5,000
Permits
Zoning Permits
$50
None required
Review of Drainage Plans and "As-Built" Plans
Review of Drainage Plans
Application plus fee
[Ord. No. 787]
$250
$1,500
Each Resubmission of Drainage Plans
$150
None required
Review of "As-Built" Plans
Application plus fee
[Ord. No. 787]
$200
$1,000
Each resubmission of "As-Built" Plan
$150
None required
c. 
The application fee as set forth hereinabove is a flat fee to cover direct administrative expenses, other than professional services and is nonrefundable. The escrow account as set forth hereinabove is established to cover the cost of professional services, including but not limited to engineering, professional planning, legal and other expenses connected with the review of the submitted materials, the related hearing process and follow up thereto. The applicant shall execute an escrow agreement to authorize payment of said expenses. Sums not utilized in the review process shall be returned to the applicant within a reasonable period of time after the adoption of a resolution of memorialization by either the planning board or zoning board disposing of the pending land development application. If additional funds are deemed necessary, the applicant shall be notified of the required additional amount and shall add such sum to the account as required by the planning board or zoning board. Where applicable, no development certificate of occupancy shall be issued until all escrow charges have been paid. All escrow charges which are due and owing shall become a lien upon the premises with respect to which said charges are required and shall remain so until paid. Said overdue charges shall accrue the same interest from time to time as taxes upon real estate in the borough. The borough shall have the same remedies for the collection thereof with interest, costs and penalties as it has by law for the collection of taxes upon real estate.
d. 
Where one application for development includes several approval requests, the sum of the individual required fees shall be paid.
e. 
Each applicant for subdivision or site plan approval shall agree in writing to pay all reasonable costs for professional review of the application and for inspection of the improvements. All such costs for review and inspection must be paid before any approved plat, plan or deed is signed or 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.
f. 
Each application to the planning board for:
1. 
Preliminary subdivision approval involving less than 20 lots;
2. 
Preliminary site plan approval involving less than 20 lots or 20 dwelling units;
3. 
Preliminary site plan approval of nonresidential building of less than 5,000 square feet;
4. 
Conditional use authorization; or
5. 
Use variance; shall also be accompanied by payment to the municipality of $150 to defray the cost of providing a shorthand reporter at the hearing on said development application.
If more than one application involving the same property is to be heard at the same hearing before the planning board, the applicant shall pay a fee of $75.
If the application involves 20 or more lots or 20 or more dwelling units or a nonresidential building of 5,000 square feet or more, the application shall be accompanied by a fee of $100.
If the planning board hearings extend more than one meeting, an additional fee in the same amount as above provided shall be paid prior to each continued hearing.
The planning board may waive in whole or in part or modify the above fees for good cause shown.
g. 
Court Reporter.
1. 
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.
2. 
Each application to the planning board for preliminary major subdivision approval, preliminary site plan approval, conditional use authorization or use variance shall, in addition to any other fees or costs, be accompanied by payment to the borough of $150 to defray the cost of providing a shorthand reporter at the hearing on such application.
In the event a hearing on any application described in this section continues beyond a single date, payment of $150 must be made to the borough prior to each and every subsequent hearing date on any such application.
The planning board, as appropriate, may waive in whole or in part the fees provided for in this section for good cause shown.
h. 
Development Fees.
1. 
Purpose.
(a) 
In Holmdel Builder's Association 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.
(b) 
Pursuant to P.L. 2008, c.46, § 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 8.7), the Division of Local Planning Services in the New Jersey Department of Community Affairs is 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 COAH or court of competent jurisdiction and have an approved spending plan may retain fees collected from non-residential development.
(c) 
Where applicable, references to approvals or compliance certification are those issued through the Affordable Housing Dispute Resolution Program (the "Program") or a court of competent jurisdiction, and/or approvals issued by the Division, as provided in N.J.A.C. 5:99.
(d) 
This paragraph establishes standards for the collection, maintenance, and expenditure of development fees and other affordable housing trust fund revenues pursuant to P.L. 2008, c.46, the Fair Housing Act, and the regulations implementing the Act at N.J.A.C. 5:99. Fees collected pursuant to this paragraph shall be used solely for the purpose of providing low- and moderate-income housing in accordance with an approved spending plan and the requirements of N.J.A.C. 5:99.
2. 
Basic Requirements.
(a) 
Hopewell Borough shall not spend, or commit to spend, any affordable housing trust fund revenues unless the expenditure is approved as part of its compliance certification or otherwise approved as permitted by N.J.A.C. 5:99 and N.J.S.A. 52:27D-329.2a(4). A municipality within the jurisdiction of the Program or a court of competent jurisdiction shall not spend trust fund revenues unless the Program or court has approved a plan for spending such funds, or unless the Division has approved spending plan expenditures for emergent opportunities as provided in N.J.A.C. 5:99.
(b) 
In the event any of the conditions described at N.J.A.C. 5:99-5.6 occur, the Division shall be authorized, on behalf of Hopewell, to direct the manner in which all funds in the affordable housing trust fund shall be expended, and the three-party escrow agreement shall be maintained at all times.
3. 
Definitions. The following terms, as used in this paragraph h, shall have the following meanings:
AFFORDABLE HOUSING DEVELOPMENT
Shall mean a development included in the Borough's 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.
AHMS
Shall mean the Affordable Housing Management System used for annual municipal monitoring submissions.
COAH OR THE COUNCIL
Shall mean the former New Jersey Council on Affordable Housing established under the Fair Housing Act which previously had primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the State. Pursuant to the Executive Reorganization Act of 1969, P.L. 1969, c. 203 (N.J.S.A. 52:14C-1 et seq.), the Governor abolished the Council and transferred all functions, powers, and duties to the Commissioner of the Department of Community Affairs, effective August 29,2011.
COMPLIANT MUNICIPALITY
Shall mean a municipality maintaining compliant status for purposes of development fee retention and trust fund maintenance as provided in N.J.A.C. 5:99.
DEPARTMENT
Shall mean the New Jersey Department of Community Affairs.
DEVELOPER
Shall mean 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
Shall mean money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:99.
DIVISION
Shall mean the Division of Local Planning Services within the Department of Community Affairs.
EQUALIZED ASSESSED VALUE
Shall mean 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 N.J.S.A. 54:1-35c).
GREEN BUILDING STRATEGIES
Shall mean 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.
MUNICIPALITY
Shall mean the Borough of Hopewell in Mercer County, also referred to herein as "Hopewell" or the "Borough."
PROGRAM
Shall mean the Affordable Housing Dispute Resolution Program, where applicable.
4. 
Residential Development fees.
(a) 
Imposed fees.
(1) 
Within the Borough, 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.
(2) 
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.
(b) 
Eligible exactions, ineligible exactions and exemptions for residential development.
(1) 
Affordable housing developments, developments where the developer is providing for the construction of affordable units elsewhere in Hopewell, 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) 
Owner-occupied residential structures demolished and replaced as a result of a fire, flood, or natural disaster shall be exempt from paying a development fee.
(4) 
Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, is demolished and replaced, 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 structure.
5. 
Non-residential Development fees.
(a) 
Imposed fees.
(1) 
Within all zoning districts, non-residential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new non-residential construction on an unimproved lot or lots.
(2) 
Non-residential developers, except for developers of the types of development specifically exempted, 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 non-residential purposes.
(3) 
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 pre-existing land and improvement and the equalized assessed value of the newly improved structure, i.e., land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the non-residential development fee shall be zero.
(b) 
Eligible exactions, ineligible exactions and exemptions for non-residential development.
(1) 
The non-residential portion of a mixed-use inclusionary or market rate development shall be subject to the 2.5% development fee, unless otherwise exempted below.
(2) 
The 2.5% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.
(3) 
Non-residential developments shall be exempt from the payment of non-residential 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.
(4) 
A developer of a non-residential development exempted from the non-residential 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 non-residential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the non-residential development, whichever is later.
(5) 
If a property which was exempted from the collection of a non-residential 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 non-residential development fees under these circumstances may be enforceable by Hopewell Borough as a lien against the real property of the owner.
6. 
Collection Procedures.
(a) 
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.
(b) 
For non-residential 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 non-residential development shall complete Form N-RDF as per the instructions provided. The construction official shall verify the information submitted by the non-residential 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.
(c) 
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.
(d) 
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 non-residential development.
(e) 
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.
(f) 
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.
(g) 
Should Hopewell Borough 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).
(h) 
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.
(i) 
Appeal of development fees.
(1) 
For residential developments, imposed and collected residential development fees that are contested shall be deposited under protest in an interest-bearing escrow account by Hopewell. The local code enforcement official shall thereafter issue the certificate of occupancy, provided that the construction is otherwise eligible for a certificate of occupancy. If all or a portion of the contested fees are returned to the developer, the accrued interest on the returned amount shall also be returned.
A developer may challenge non-residential development fees by filing a challenge with the Director of the Division of Taxation. Collected fees shall be placed in an interest-bearing escrow account by the Borough if the Borough is authorized to retain the fees, or by the State if the Borough is not authorized to retain the fees. The local code enforcement official shall thereafter issue the certificate of occupancy provided that the construction is otherwise eligible for a certificate of occupancy. Appeals from a determination of the Director may be made to the Tax Court in accordance with 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.
7. 
Affordable Housing Trust Fund.
(a) 
There is hereby created a separate, interest-bearing housing trust fund to be maintained by the chief financial officer for the purpose of depositing development fees collected from residential and non-residential developers and proceeds from the sale of units with extinguished controls ("Affordable Housing Trust Fund").
(b) 
The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:
(1) 
Payments in lieu of on-site construction of affordable units;
(2) 
Developer contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;
(3) 
Rental income from municipally operated units;
(4) 
Repayments from affordable housing program loans;
(5) 
Recapture funds;
(6) 
Proceeds from the sale of affordable units; and
(7) 
Any other funds collected in connection with Hopewell's affordable housing program.
(c) 
Within 21 days from the opening of the Affordable Housing Trust Fund account, and within 21 days of any change in the bank or other financial institution in which trust funds are deposited, Hopewell shall provide the Division with written authorization, in the form of a three-party escrow agreement between Hopewell, the bank or other financial institution, and the Division, to permit the Division to direct the disbursement of the funds as provided for in N.J.A.C. 5:99-5.6. This escrow agreement shall be maintained at all times.
(d) 
All interest accrued in the Affordable Housing Trust Fund shall only be used on eligible affordable housing activities included in an approved spending plan or an emergent opportunity authorized by the Division.
8. 
Use of Funds.
(a) 
The expenditure of all funds shall conform to a spending plan approved by the Program or a court of competent jurisdiction, or as approved by the Division for an emergent opportunity to create affordable housing, as permitted by N.J.A.C. 5:99 and N.J.S.A. 52:27D-329.2a(4). 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 non-residential 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 and specified in the approved spending plan.
(b) 
Funds shall not be expended to reimburse Hopewell Borough for past housing activities.
(c) 
The Borough shall set aside a portion of all development fees collected and interest earned for the purpose of providing affordability assistance to very low-, low-, and moderate-income households in affordable units included in the municipality's fair share plan. Affordability assistance for very-low-income households may include offering a subsidy to developers of inclusionary or 100% affordable developments or buying down the cost of low- or moderate-income units to make them affordable to very-low-income households, including special needs and supportive housing opportunities.
Payments in lieu of constructing affordable units shall be deposited into the Affordable Housing Trust Fund and accounted for separately, identified in annual monitoring submissions, and included in the municipal spending plan. Whenever a payment-in-lieu fee is assessed for a development, a development fee shall not be charged in connection with the same development.
(d) 
Hopewell Borough 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, in accordance with N.J.A.C. 5:99-7.
(e) 
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 qualification of households, monitoring the turnover of sale and rental units, and compliance with the Department's monitoring requirements. Municipal affordable housing trust funds shall not be expended on attorney fees or court costs to obtain a judgment of compliance or order of repose (including associated administration costs), on any costs in connection with a challenge to the municipality's fair share obligation, or on any costs in connection with a challenge to the municipality's obligation, housing element, or fair share plan, as provided in N.J.A.C. 5:99.
9. 
Monitoring.
(a) 
Hopewell Borough shall submit all required monitoring information through the online AHMS in the time and form required by the Division. Monitoring information for each calendar year shall be submitted in the form of a certification by the municipal housing liaison, or their designee (who shall be a municipal employee), and shall be accompanied by a year-end bank or other financial institution statement used to reconcile municipal reporting. Municipal monitoring information certifications shall be submitted through AHMS by February 15 of each year for trust fund activity through December 31 of the previous year.
10. 
Ongoing Collection of Fees.
(a) 
The ability for Hopewell Borough to impose and collect and retain residential development fees, retain non-residential development fees, and maintain an affordable housing trust fund is subject to maintaining its status as a compliant municipality, except as otherwise provided by law for Qualified Urban Aid Municipalities. If a court of competent jurisdiction finds that the municipality has failed to maintain its status as a compliant municipality, the municipality may be subject to forfeiture of any or all funds remaining within the Affordable Housing Trust Fund, and any funds so forfeited shall be deposited into the New Jersey Affordable Housing Trust Fund established pursuant to N.J.S.A. 52:27D-320.
a. 
Rules. The planning board shall make rules governing the conduct of hearings before such body which rules shall not be inconsistent with the provisions of R.S. 40:55D-1, et seq., or of this chapter.
b. 
Oaths; Subpoenas. The officer presiding at the hearing, or such person as he may designate, shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties. The provisions of the "County and Municipal Investigations Law," C. 38, P.L. 1953, R.S. 2A:67A-1, et seq., shall apply.
c. 
Testimony. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer and the right of cross examination shall be permitted to all interested parties through their attorney, 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.
d. 
Evidence. Technical rules of evidence shall not be applicable to the hearing, but the board may exclude irrelevant, immaterial or unduly repetitious evidence.
e. 
Records. The planning board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense. The transcript cost will not exceed the maximum permitted in R.S. 2A:11-15. A deposit representing an estimate of the cost of said transcript shall be paid prior to its preparation.
Whenever a hearing is required on an application for development pursuant to R.S. 40:55D-1, et seq., or pursuant to the determination of the borough agency in question, the applicant shall give notice thereof as follows:
a. 
Public Notice. Public notice shall be given by publication in the official newspaper of the borough at least 10 days prior to the date of the hearing.
b. 
Notice to Property Owners. Notice shall be given to the owners of all real property as shown on the current tax duplicate, located in the state and within 200 feet in all directions of the property which is the subject of such hearing; provided that this requirement shall be deemed satisfied by notice to the (1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) horizontal property regime in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by: (1) serving a copy thereof of the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate. A return receipt is not required.
Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice-president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.
Notice to a condominium association, horizontal property regime, community trust or homeowner's association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners or homeowners on account of such common elements or areas.
c. 
Adjoining Municipality. Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality. Such notice shall be addition to the notice required to be given pursuant to paragraph b of this subsection to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.
d. 
County Planning Board. Notice shall be given by personal service or certified mail to the county planning board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the official county map or on the county master plan, adjoining other county land or situate within 200 feet of a borough boundary.
e. 
Commissioner of Transportation. Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.
f. 
Department of Community Affairs. Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the borough clerk pursuant to Section 6b of C. 291, P.L. 1975, R.S. 40:55D-1 et seq.
g. 
Proof of Service. All notices hereinabove specified in this subsection shall be given at least 10 days prior to the date fixed for hearing and the applicant shall file an affidavit of proof of service with the board holding the hearing on the application for development.
h. 
Completion of Notice. Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of R.S. 40:55D-14.
i. 
Form of Notice. All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing, the nature of the matters to be considered and identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the borough tax assessor's office and the locations and terms at which any maps and documents for which approval is sought are available as required by law.
j. 
Certain Notices Not Required. Notice pursuant to paragraphs 10A-4.6c, 10A-4.6d, 10A-4.6e, and 10A-4.6f shall not be deemed to be required unless public notice pursuant to paragraphs 10A-4.6a and 10A-4.6b is required.
k. 
Notice to Public Utilities, Local Utilities and Cable Television Companies.
1. 
Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan requiring public notice shall be given, in the case of a public utility, cable television company or local utility which possesses a right-of-way or easement within the borough and which is registered with the borough in accordance with subparagraph 2 of this paragraph k, by (1) serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility or (2) mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.
2. 
Every public utility, cable television company or local utility which possesses a right-of-way or easement within the borough may register with the borough to receive notice of hearings in accordance with paragraph (1) of this paragraph k. The tax assessor of the borough shall adopt a registration form and shall maintain a record of all public utilities, cable television companies and local utilities which have registered with the borough. The registration form shall include the name of the public utility, cable television company or local utility and the name, address and position of the person to whom notice shall be forwarded. The information contained therein shall be made available to any applicant pursuant to subsection 10A-4.7 of this chapter. A registration fee of $10 shall be collected from every public utility, cable television company or local utility which registers to receive notice pursuant to this chapter.
Pursuant to the provisions of R.S. 40:55D-12c, the tax assessor of the borough shall within seven days after receipt of a request therefor and upon receipt of payment of a fee not to exceed $0.25 per name, or $10, whichever is greater, make and certify a list from the current tax duplicate of names and addresses of owners to whom the applicant is required to give notice pursuant to subsection 10A-4.6b of this chapter. In addition, the tax assessor shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to subsection 10A-4.6k.
a. 
Resolution of the Board. The planning board shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The planning board shall provide the findings and conclusions through:
1. 
A resolution adopted at a meeting held within the time period provided in the New Jersey Municipal Land Use Law for action by the planning board on the application for development; or
2. 
A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the planning board voted to grant or deny approval. Only the members of the planning board who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to Section 5 of the New Jersey Municipal Land Use Law (40:55D-9) (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the planning board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required by Subsections h and I of Section 6 (40:55D-10). If the planning board fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the planning board to reduce its findings and conclusions to writing within a stated time and cost of the application, including attorney's fees, shall be assessed against the municipality.
b. 
Copy of the Decision; Mailings; Public Record. A copy of the decision shall be mailed by the planning board within 10 days of the date of the decision to the applicant, or if represented, then to his attorney, without separate charge. A copy of the decision shall also be mailed to all persons who have requested it and who have paid the fee prescribed by the board for such service. A copy of the decision shall also be filed in the office of the borough clerk, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the borough.
A brief notice of every final decision shall be published in the official newspaper of the borough. Such publication shall be arranged by the secretary of the planning board. The cost of publication shall be paid by the applicant. The notice shall be sent to the official newspaper for publication within 10 days of said decision.
Pursuant to the provisions of R.S. 40:55D-39 and R.S. 40:55D-65, every application for development submitted to the planning board shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of such application; or, if it is shown that taxes or assessments are delinquent on such property, any approvals or other relief granted by the planning board shall be conditioned upon either the prompt payment of such taxes or assessments, or the making of adequate provision for the payment thereof in such manner that the borough will be adequately protected.
Any interested party may appeal to the governing body any final decision of the planning board, acting as a board of adjustment, approving an application for development pursuant to N.J.S.A. 40:55D-70(d). Such appeal shall be made within 10 days of the date of publication of such final decision pursuant to N.J.S.A. 40:55D-10(i). The appeal to the governing body shall be made by serving the municipal clerk in person or by certified mail, with a notice of appeal specifying the grounds thereof and the name and address of the appellant and the name and address of his attorney, if represented. Such appeal shall be decided by the governing body only upon the record established before the planning board.
Notice of the meeting to review the record below shall be given by the governing body by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to N.J.S.A. 40:55D-10(h), and to the planning board at least 10 days prior to the date of the meeting. The parties may submit oral and written argument on the record at such meeting, and the governing body shall provide for verbatim recording and transcripts of such meeting pursuant to N.J.S.A. 40:55D-10(f).
The appellant shall (1) within five days of service of the notice of the appeal, arrange for a transcript pursuant to N.J.S.A. 40:55D-10(f) for use by the governing body and pay a deposit of $50 or the estimated cost of such transcription, whichever is less, or (2) within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to the municipal clerk; otherwise, the appeal may be dismissed for failure to prosecute.
The governing body shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to N.J.S.A. 40:55D-10(i) unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the board.
An appeal to the governing body shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the planning board certifies to the governing body, after the notice of appeal shall have been filed with the board, that by reason of facts stated in the certificate a stay would, in its opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court on application upon notice to the planning board and on good cause shown.
The governing body shall mail a copy of the decision to the appellant or if represented then to his attorney, without separate charge, and for a reasonable charge to any interested party who has requested it, not later than 10 days after the date of the decision. A brief notice of the decision shall be published in the official newspaper of the municipality. Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained herein shall be construed as preventing the applicant from arranging such publication if he so desires. The governing body may make a reasonable charge for its publication. The period of time in which an appeal to a court of competent jurisdiction may be made shall run from the first publication, whether arranged by the municipality or the applicant.
[Ord. 276]
[1]
Editor's Note: Ordinance No. 369 which amended various sections of this chapter provides that any application for development submitted before July 1, 1984 to a municipal agency pursuant to lawful authority may be continued at the option of the applicant, and the municipal agency shall have every power it possessed before July 1, 1984 in regard to any such application.
Whenever a term is used in this chapter which is defined in Chapter 291, P.L. 1975, R.S. 40:55D-1 et seq., such term is intended to have the meaning set forth in the definition of such term found in the statute, unless a contrary intention is clearly expressed from the context of this chapter.
All sections of the land subdivision ordinance and zoning ordinances, or any other ordinance of the borough which contains provisions contrary to the provisions of this chapter shall be and are hereby, to the extent of such inconsistency, repealed.
Pursuant to the provisions of Chapter 291, P.L. 1975, R.S. 40:55D-1 et seq., Section 81, the substantive provisions and any consistent procedural provisions of the existing Land Subdivision Chapter, Chapter 11 and the Zoning Chapter, Chapter 12, of this revision adopted June 2, 1975, as amended, and the development regulations set forth herein are hereby adopted by reference and shall continue in full force and effect and shall be read in para materia with this chapter.
All applications for development filed prior to the effective date of this chapter may be continued, but any appeals arising out of decisions made on any such application shall be governed by the provisions of section 10A-5 of this chapter.
Immediately upon adoption of this chapter, the borough clerk shall file a copy of this chapter with the county planning board as required by law. The clerk shall also file with the county planning board copies of all other ordinances of the borough relating to land use, such as the subdivision, zoning and site plan review ordinances.
This chapter shall take effect on February 1, 1977, and upon the filing of a copy thereof with the Mercer County Planning Board.