Borough of Mountain Lakes, NJ Article IV Provisions Applicable to Both the Planning Board and Zoning Board of Adjustment

§ 40-29 Conflicts of interest.

No member of the Planning Board or Zoning Board of Adjustment 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.

§ 40-30 Meetings.

A. Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.

B. Special meetings may be provided for at the call of the Chairperson or at the request of any two Board members. Such meeting shall be held on notice to its members and the public in accordance with all applicable legal requirements.

C. No action shall be taken at any meeting without a quorum being present.

D. All actions shall be taken by majority vote of the members present except as otherwise required by any provision of N.J.S.A. 40:55D-70d.

E. All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Law, N.J.S.A. 10:4-6 et seq. To the extent permitted by the Open Public Meetings Law, and in accordance with the provisions of N.J.S.A. 40:55D-9, an executive session for the purpose of discussing and studying any matters to come before either Board shall not be deemed a regular or special meeting, and no actions requiring a vote shall be taken.

§ 40-31 Minutes.

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 administrative officer. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceeding 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.

§ 40-32 Fees.

Fees for applications or for the rendering of any service by the Planning Board or Zoning Board of Adjustment or any member of its administrative staff which are not otherwise provided by ordinance may be provided for and adopted as part of the rules of the Board, and copies of such rules or of the separate fee schedule shall be available to the public. Fees shall be as set forth in § 111-3G and H.

§ 40-33 Additional refundable escrow fees and court reporter costs.

[Added by Ord. No. 4-89; amended 6-28-1999 by Ord. No. 8-99]

A. Upon filing any application for development with the Planning Board or Zoning Board of Adjustment, an applicant shall post escrow fees with the reviewing Board for those applications, and in the amounts, specified in § 111-3G and/or H of this Code. The provisions of N.J.S.A. 40:55D-53.2 and 40:55D-53.2a shall apply to all escrow fees posted with the Planning Board pursuant to § 111-3G and to all escrow fees posted with the Zoning Board of Adjustment pursuant to § 111-3H.

B. Separate from any requirement for additional refundable escrow fees, if either the applicant or the Board desires a stenographic transcript of hearings or other meetings related to any application, the costs of appearance, taking down the testimony or discussion, transcribing it and providing a copy of the transcript to the Board shall be at the expense of the applicant, who shall also arrange for the attendance of a certified shorthand reporter.

§ 40-34 Public hearings.

A. Rules. The Planning Board and Zoning Board of Adjustment may make rules governing the conduct of hearings before such bodies, which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.

B. Oaths. The officer presiding at the hearing or such person as (s)he may designate shall have power to administer the oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, N.J.S.A. 2A:67A-1 et seq., shall apply.

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 attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.

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. Each Board shall provide for the verbatim recording of the proceedings by either stenographer or by mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his/her expense.

§ 40-35 Notice requirement for hearing.

[Amended by Ord. No. 9-82]

Public notice of a hearing on all applications for development shall be given, except for minor site plans, minor subdivisions and final approval of major site plans and major subdivisions. Public notice shall be given in the event relief is requested, pursuant to N.J.S.A. 40:55D-60, 40:55D-70 or 40:55D-76 as part of an application for development otherwise excepted herein from public notice.

A. Whenever a hearing shall be required on an application for development, pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall give notice thereof as follows:

(1) By publication in the official newspaper of the Borough;

(2) By serving a copy thereof on the owner as shown on the current tax duplicate or his/her agent in charge of the property; or

(3) By mailing a copy thereof by certified mail to the property owner at his/her address as shown on the current tax duplicate. A return receipt shall not be required. Notice shall be deemed complete upon mailing.

B. Notice shall be given to the owners of all real property, as shown on the current tax duplicate, located within 200 feet in all directions of the property which is the subject of such hearing, and whether located within or without the municipality in which applicant's land is located. 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 homeowners' 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. Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given to the clerk of the municipality, which notice shall be in addition to the notice required to be given, pursuant to Subsection B of this section, to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.

D. Notice shall be given to the County Planning Board of a hearing on 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 municipal boundary.

E. Notice shall be given to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.

F. Notice shall be given 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 N.J.S.A. 40:55D-10.

G. Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan under this chapter and requiring public notice pursuant to this section 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 of Mountain Lakes and which has registered with the Borough in accordance with N.J.S.A. 40:55D-12.1, by 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 mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.

[Added 6-28-1999 by Ord. No. 8-99]

H. All notices hereinabove specified in this section 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.

I. All notices required to be given pursuant to the terms in this section 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 location and times at which any maps and documents for which approval is sought are available as required by law.

§ 40-36 List of property owners furnished.

[Amended 6-28-1999 by Ord. No. 8-99]

Pursuant to the provisions of N.J.S.A. 40:55D-12c, the administrative officer shall, within seven days of receipt of a request therefor and upon receipt of payment of a fee as specified in § 111-3G and H, provide a list certified by the Tax Assessor from the current tax duplicate of names and addresses of owners in the Borough to whom the applicant is required to give notice, pursuant to § 40-35B. In addition, the administrative officer 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 § 40-37.

§ 40-37 Registration by public utilities, cable television companies and local utilities to receive notice of applications.

[Added 6-28-1999 by Ord. No. 8-99]

A. Every public utility, cable television company, and local utility interested in receiving notice pursuant to § 40-35G may register with the Borough to receive notice. This registration shall remain in effect until revoked by the public utility, cable television company, or local utility, or by its successor in interest.

B. The administrative officer shall adopt a registration form and shall maintain a record of all public utilities, cable television companies, and local utilities which have registered pursuant to Subsection A of this section. 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, as provided for in § 40-36.

C. Any public utility, cable television company, or local utility which registers to receive notice pursuant to Subsection A of this section shall pay to the Borough a registration fee as set forth at § 111-3G(6).

D. The administrative officer shall notify the corporate secretary of every local utility that, in order to receive notice by an applicant pursuant to § 40-35G, the utility must register with the Borough or any other municipality in which the utility has a right-of-way or easement.

§ 40-38 Decisions.

[Amended by Ord. No. 10-84]

A. Findings of fact and conclusions. The 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. Failure of a motion to receive the number of votes required to approve an application for development pursuant to the exceptional vote requirements of N.J.S.A. 40:55D-34 or § 40-21A(4) of this chapter shall be deemed an action denying the application. The Board shall provide the findings and conclusions through:

(1) A resolution adopted at a meeting held within the time period provided in the Act for action by the 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 Board voted to grant or deny approval. Only the members of the 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 N.J.S.A. 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 Board and not to be an action of the 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 N.J.S.A. 40:55D-10(h) and (i).

B. Conditional decisions; County Planning Board approval. Where required by law, see N.J.S.A. 40:27-6.6, the application shall be submitted to the Morris County Planning Board for review or approval, and in such cases the Borough Planning Board and Zoning Board of Adjustment shall condition any approval that each grants upon timely receipt of a favorable report from the County Planning Board or upon the County Planning Board's failure to report within the required time period. Decisions may all be conditioned on approval by other governmental agencies.

C. Mailing. A copy of the decision shall be mailed by the Board within 10 days of the date of decision to the applicant or, if represented, then to his/her attorney without separate charge. A copy of the decision shall also be mailed to all persons who request it and who have paid the prescribed fee. A copy of the decision shall also be filed in the office of the administrative officer, who shall make a copy of such filed decision available for public inspection during his/her office hours and a copy available to any interested party upon payment of a fee calculated in the same manner as those established for copies of the other public documents in the Borough.

D. Publication. 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 or Zoning Board of Adjustment, as the case may be, for a reasonable charge. The applicant may also arrange for such publication. Notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision.

§ 40-39 Payment of taxes.

Pursuant to the provisions of N.J.S.A. 40:55D-39 and 40:55D-65, every application for development submitted to the Planning Board or Zoning Board of Adjustment 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 the property, any approvals or other relief granted by either 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 shall be adequately protected.

§ 40-40 Pending applications.

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 § 40-22 of this chapter.

§ 40-41 Copy of chapter to be filed with County Planning Board.

Immediately upon adoption of this chapter the Borough Clerk shall file a copy with the County Planning Board as required by law. The Borough Clerk shall also file with the County Planning Board copies of all other Borough land use ordinances.

§ 40-42 Expiration of variance.

[Added by Ord. No. 8-88; amended 11-9-2009 by Ord. No. 15-09]

Any variance hereafter granted by the Zoning Board of Adjustment or the Planning Board permitting the erection or alteration of any structure(s) 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 the variance, or unless such permitted use has actually been commenced, within 18 months from the date memorializing the resolution by the Zoning Board of Adjustment or Planning Board, except 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 Zoning Board of Adjustment or Planning Board to the Council or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding. Any variance may be extended for up to an additional 18 months by written request to the Zoning Board of Adjustment or Planning Board based on whichever granted the original variance relief. The written request shall provide the reasoning for the variance extension and the requested time period for the extension. The respective Board shall review the request and determine if an extension is warranted given the specific circumstances and considerations of the variance in question.