Where the Planning Board shall determine that off-tract improvements are, in whole or in part, necessitated by the application of the developer and the installation of the improvements would confer a benefit upon the development, it shall forward such recommendation to the Township Council. Any off-site or off-tract stormwater management and drainage improvements must conform to Chapter 396, Stormwater Management.[1]
[1]
Editor's Note: See also §§ 245-15, 245-305 and 245-306 of this chapter.
The Township Council shall cause the Township Engineer to make a determination of the contribution of the developer for said off-tract improvements. Said estimated cost of the off-tract improvement shall set forth an estimate by which all properties to be serviced thereby, including the developer's property, shall be benefited. In determining the developer's contribution, the Township Engineer shall be guided by the following criteria:
A. 
The developer shall be required, as a condition of final subdivision or site plan approval, to pay his pro rata share of the cost of providing only reasonable and necessary street improvements and water, sewerage and drainage facilities, and easements therefor, located outside the property limits of the development but necessitated or required by construction or improvements within such development. The developer shall either install the improvements or contribute his pro rata share of the costs, at the option of the developer. If the developer installs the improvements, he shall be compensated for all but his pro rata share of the cost of said improvements.
B. 
The developer shall pay the full cost of all off-tract improvements required by the Township Council if such off-tract improvements are wholly necessitated by the proposed development and said improvements benefit any land other than the land within the subdivision or site plan.
C. 
The developer shall provide for payment of its pro rata share, allocated in conformance with the standards set out in § 245-344 hereof, of all off-tract improvements required by the Township Council if such improvements are wholly or partially necessitated by the proposed development and said improvements benefit lands other than those within the subdivision or site plan.
In the event that the approving authority shall determine that off-tract improvements are required in connection with any subdivision or site plan, then prior to granting final approval:
A. 
The approving authority shall report to the Township Council all of the following:
(1) 
The location, character and extent of the required off-tract improvements.
(2) 
The Municipal Engineer's estimate of the total cost of such off-tract improvements.
(3) 
The proposed allocation of the total cost determined in accordance with the standards set forth in § 245-344 below.
B. 
The Township Council shall determine whether and by what date the off-tract improvements will be constructed by the Township as a general improvement or as a local improvement or as a combination thereof, or whether the developer, at his option, may construct the required off-tract improvements and be reimbursed pursuant to a formula specified by the Township Council if the improvement specifically benefits property other than that within this subdivision or site plan.
C. 
The determination of the Township Council shall be reported to the approving authority, which shall require, as a condition of final approval of the subdivision plat or site plan, that:
(1) 
If the improvement is to be constructed by the Township as a general improvement, the developer shall deposit with the Township Treasurer an amount equal to the difference, if any, between the estimated cost of the improvement and the estimated total amount by which all properties, including the subdivision or site plan to be serviced by the improvement, will be specially benefited by the improvement; or
(2) 
If the improvement is to be constructed by the Township as a local improvement, the developer shall deposit with the Township Treasurer, in addition to the amount specified in Subsection C(1) above, the estimated amount by which the subdivision or site plan will be specially benefited by the improvement.
A. 
In determining the allocation of costs for off-tract improvements as between the developer, other property owners and the Township, the Township Council shall be guided by all of the following factors:
(1) 
The total estimated cost of off-tract improvements.
(2) 
The increase in market values of the properties affected and any other benefits conferred.
(3) 
The needs created by the application.
(4) 
Population and land use projections for the land within the general area of the subdivision or site plan and other areas to be served by the off-tract improvements.
(5) 
The estimated time for construction of off-tract improvements.
(6) 
The condition and periods of usefulness of the improvements which may be based on the criteria of N.J.S.A. 40A:2-22.
B. 
Without limiting the generality of the foregoing, the Township Council may take into account the following specific factors:
(1) 
With respect to street, curb, gutter, sidewalk, streetlight, street sign and traffic light improvements, the Township Council may consider the following:
(a) 
Traffic counts.
(b) 
Existing and projected traffic patterns.
(c) 
Quality of roads and sidewalks in the area.
(d) 
Such other factors as it may deem relevant to the needs created by the proposed development.
(2) 
With respect to drainage facilities, the Township Council may consider the following:
(a) 
The relationship between the areas of the subdivision or site plan and the area of the total drainage basin of which the subdivision or site plan is a part.
(b) 
The proposed use of land within the subdivision or site plan and the amount of land area to be covered by impervious surfaces on the land within the subdivision or site plan.
(c) 
The use, condition or status of the remaining land area in the drainage basin.
(3) 
With respect to water, gas and electric supply and distribution facilities, the Township Council may consider the use requirements of the use proposed for the subdivision or site plan and the use requirements of all other properties to be benefited by the improvements.
(4) 
With respect to sewerage facilities, the Township Council may consider the following:
(a) 
The anticipated volume of effluent from the use proposed for the subdivision or site plan and the anticipated volume of effluent from all other properties to be benefited by the improvements.
(b) 
The types of effluent anticipated and particular problems requiring special equipment or added costs.
Any money received by the Township Treasurer for off-tract improvements to be constructed or installed by the Township pursuant to the provisions of this section shall be deposited in a suitable depository therefor and shall be used only for the improvements for which they are deposited or improvements satisfying the same purpose. If construction of improvements for which the Township is responsible has not commenced within five years from the date of deposit, the amount deposited shall be returned to the developer or his successor in interest.
Upon completion of any improvement constructed by the Township as a general or local improvement, the total cost of such improvement shall be determined by the ordinance providing for such improvements. The difference between the actual cost as so determined and the estimated cost shall be computed. The developer or his successor in interest shall make remittance to the Township if the actual cost exceeds the estimated cost, or he shall receive a refund from the funds deposited with the Township if the estimated costs exceed the actual cost, in an amount which bears the same relationship to the difference between the actual and estimated costs as the amount deposited by the developer for his proportionate share of the estimated cost bears to the total estimated cost. Any sum payable by the developer or his successor in interest may be levied and collected by the Township in the same manner as is provided by law for the levy and collection of real estate taxes.
In the absence of an express provision in a deed or deeds of conveyance, it shall be presumed that the fee owners of all lots in the subdivision or site plan at the date any deposit or portion thereof is returned or additional charge is made pursuant to §§ 245-345 and 245-346 of this article are the lawful successors in interest to the developer, and each such fee owner shall be charged with or entitled to receive a pro rata share, based on lot area, or any funds to be returned or additional charge to be made pursuant to this section. Upon payment of any such sums to said fee owners, the Township shall be released of liability to any other person.
A. 
Determination of manner of construction. Upon completion of the studies by the Township Council with respect to the costs of the improvement and special benefits to be conferred, the Township Council shall make a determination as to whether the off-tract improvement is to be constructed by the Township as a general improvement or by the Township as a local improvement or by the developer under a formula providing for partial reimbursement by the Township for benefits to properties other than the subdivision.
B. 
Bond or cash deposit. When this has been determined, the developer may be required to provide, as a condition for final approval of the development, a bond or a cash deposit to ensure payment to the Township of one of the following amounts:
(1) 
If the improvement is to be constructed by the Township as a general improvement, an amount equal to the difference between the estimated cost of the improvement and the estimated total amount, if less, by which all properties to be serviced thereby, including the developer's property, will be specially benefited by the off-tract improvement.
(2) 
If the improvement is to be constructed by the Township as a local improvement, the estimated amount by which the subdivision will be specially benefited by the off-tract improvement.
(3) 
If the improvement is to be constructed by the developer, an amount equal to the estimated cost of the off-tract improvement, less an offset for benefits to properties other than the subdivision.
In determining benefits conferred on properties specially benefited by an off-tract improvement, the following formula shall, subject to adjustment for peculiar or exceptional conditions, be used:
A. 
The development shall be allocated that percentage of 100 computed by dividing the development land area by the total land area benefited by the off-tract improvement.
B. 
The development shall be allotted that percentage of 100 computed by dividing the maximum potential intensity of use of the development (total square feet of building floor area) by the maximum potential intensity of use under existing zoning limitation in the total land area benefited by the off-tract improvement.
C. 
In the case of linear improvements, i.e., roads, curbing, sidewalks, pipes, drains, sewers, drainage easements, etc., the development shall be allotted that percentage of 100 computed by dividing the distance (measured along the course of the off-tract improvement) from the connecting facility to the farthest abutting point of the subdivision by the sum of the distance of all intervening properties, including the developments abutting the off-tract improvement similarly measured.
D. 
The sum of Subsections A, B and C, if applicable, shall be divided by two (or three if Subsection C is included), to arrive at the percentage which, subject to discretionary adjustment as above stated, shall be the percentage of the total cost of the off-tract improvements which shall be apportioned to the developer.
The requirement of appropriate off-tract improvements and the apportionment of the cost of a portion thereof to the developer shall, where applicable, be a condition of either preliminary approval or final approval of a subdivision or site plan. If not imposed as a condition of preliminary approval, such off-tract improvements and the apportionment of the cost thereof shall be considered improvements under N.J.S.A. 40:55D-1 et seq., which may be imposed at the time of final approval.
A. 
The estimated cost of the off-tract improvement allocated to the developer, if deposited in cash, shall be paid by the developer to the Township Treasure, who shall provide a suitable depository therefor. and such funds shall be used only for the off-tract improvements serving the same purpose. If such improvements are not initiated by the Township within a period of 10 years from the date of payment, then funds so deposited shall be returned, together with accumulated interest or other income thereon, if any.
B. 
In the event that the payment by the developer to the Township Treasurer provided for herein is less than its share of the actual cost of the off-tract improvements, then it shall be required to pay its additional share of the cost thereof.
C. 
In the event that the payment by a developer to the Township Treasurer provided for above is more than its appropriate share of the actual cost of installation of the off-tract improvements, it shall be repaid an amount equal to the difference between the deposit and its share of the actual cost.
D. 
Before apportioning cost of off-tract improvements to a developer, the Township Council shall notify and afford the developer an opportunity to be heard thereon at a public meeting. If the developer shall deem that any of the amounts so estimated by the Township Council are unreasonable, it may challenge them and seek to have them revised in appropriate proceedings brought to compel development application approval.
E. 
If the developer and the Township cannot agree with respect to the developer's appropriate share of the actual cost of the off-tract improvement or the determination made by the officer or body charged with the duty of making assessments as to special benefits, if the off-tract improvement is constructed as a local improvement, the dispute shall be decided in an appropriate judicial proceeding.
Upon receipt from the developer of its allocated share of the costs of the off-tract improvements, the Township may adopt a local improvement assessment ordinance for the purpose of construction and installation of the off-tract improvements based upon the actual cost thereof. Any portion of the cost of the improvements not defrayed by a developer may be assessed against benefiting property owners by the Township. Any assessments for benefits conferred made against the developer or its successors in interest shall be first offset by a pro rata share credit of the allocated costs previously deposited with the Township Treasurer pertaining thereto. The developer or his successors in interest shall not be liable for any part of an assessment for such improvements unless the assessment exceeds its pro rata share credits for its deposits, and then only to the extent of the deficiency.
In the event that the developer installs and constructs an off-tract improvement on any portion thereof, which improvement is accepted by the Township, then the cost shall be treated as a credit against any future assessment for that particular off-tract improvement, or portion thereof, constructed by the Township in the same manner as if the developer had deposited its appointed cost with the Township Engineer, as provided herein.
A. 
At the discretion and option of the Township, the Township may enter into a contract with the developer providing for the installation and construction of the off-tract improvements by the developer upon contribution by the Township of the remaining unallocated portion of the cost of the off-tract improvement.
B. 
In the event that the Township so elected to contribute to the cost and expense of installation of the off-tract improvements by the developer, the portion contributed by the Township shall be subject to possible certification and assessment as a local improvement against benefiting property owners in the manner provided by law, if applicable.
C. 
Should the developer and the Township enter into a contract for the construction and erection of the off-tract improvements to be done by the developer, the developer shall observe all requirements and principles of Part 3 of this chapter and other ordinances in the design of such improvements. All said improvements are to be shown on plans and profiles which will become part of preliminary plans.