Absecon City Zoning Code
ARTICLE XXV
Enforcement; Penalties; Appeals
§ 224-180 Enforcement.
[1997 Code § 224-180]
All provisions of this chapter shall be enforced by the Construction Official of Absecon City. In no case shall a building permit be issued for construction or alteration of use/or any building where such construction or alteration would be in violation of any provision of this chapter. The Construction Official shall be authorized to grant permits where provisions of this chapter have been complied with, to make inspections and to examine plans and specifications. The Construction Official shall keep careful and comprehensive records of all applications, permits issued, inspections made and notices issued. The City Tax Assessor shall receive a copy of all permits.
§ 224-181 Assistant Zoning Officer.
[1997 Code § 224-181]
There is hereby established a position of Assistant Zoning Officer in and for the City of Absecon City. The term of office for the Assistant Zoning Officer shall be one year from the date of his appointment. The Assistant Zoning Officer shall assist the Zoning Officer in ascertaining any violations of the Zoning Ordinance of the City of Absecon City, specifically but not limited to Section 224-106, General regulations, and Ordinance No. 14 of 1985 (the Appearance Ordinance). The Assistant Zoning Officer's work schedule and salary shall be fixed by the City Council of the City of Absecon City annually. The Assistant Zoning Officer shall be under the direct authority of the Zoning Officer.
§ 224-182 Permits for major subdivisions.
[1997 Code § 224-182]
No building permits shall be issued for alteration or construction or buildings or structures, sign construction or change in use until final site plan approval has been granted as required in this chapter.
§ 224-183 Other permits.
[1997 Code § 224-183]
No building permits shall be issued for alteration or construction or buildings or structures, sign construction or change in use until final site plan approval has been granted as required in this chapter.
§ 224-184 Certificates of occupancy.
[1997 Code § 224-184]
No certificate of occupancy for any dwelling, building or structure shall be granted by the Construction Official unless all required improvements have been installed or completed.
§ 224-185 Certificate of approval.
[1997 Code § 224-185]
Certificates of approval for subdivisions and site plans shall be issued by the City Clerk upon receipt of a signed approved plat from the appropriate board.
§ 224-186 Applications.
[1997 Code § 224-186]
Applications for all permits and certificates provided in this article shall be made upon the proper form and accompanied by the fee prescribed in Article XXVI.
§ 224-187 Violations and penalties.
[1997 Code § 224-187; N.J.S.A. 40:55D-55]
A.
The following penalties shall be imposed for violation of the provisions of this chapter:
(1)
Sale before approval. If, before final approval has been granted, any person transfers, sells or agrees to sell as owner or agent any land which forms a part of a subdivision on which, by ordinance, the Planning Board is required to act, such person shall be subject to a fine not to exceed $1,000, and each lot or parcel so disposed of shall be deemed a separate violation.
(2)
Any other violation of the provisions of this chapter shall be punishable by a fine not exceeding $500 or imprisonment for a period not exceeding 30 days. Each day that a violation shall continue shall constitute a separate violation.
B.
Nothing in this Article shall be construed to limit the City of Absecon City's right to institute and maintain a civil action, to seek active injunctive relief or to set aside or invalidate any conveyance made pursuant to a contract of sale.
§ 224-188 Denial of permits and certificates.
[1997 Code § 224-188]
Where a permit or certificate is denied, the official responsible shall send promptly to the applicant, at the address given on the application, a notice of decision setting forth the reasons for denial.
§ 224-189 Issuance of permits and certificates; expiration.
[1997 Code § 224-189]
Building permits shall be issued separately for each lot and shall lapse one year after issued. Certificates of occupancy shall be granted or denied within 10 days of application, if all City requirements are complied with, in the case of new construction, within 30 days in the case of alterations and conversions and within 30 days following Zoning Board approval in the case of nonconforming uses and variances. Such certificates shall lapse 90 days after issued. Minor and major subdivision approvals shall expire unless properly recorded pursuant to Sections 224-137 and 224-150, respectively, of this chapter.
§ 224-190 Board powers; appeals; public notice.
[1997 Code § 224-190]
For purposes of this chapter, the Zoning and Planning Boards of the City of Absecon City shall exercise the following powers:
A.
The Planning Board of the City of Absecon City shall enforce the subdivision, site plan and certain of the zoning articles of this chapter.
(1)
Subdivision/site plan. The City Council of the City of Absecon City requires, with passage of this chapter, Planning Board approval by resolution of subdivision plats as a condition for filing of such plats with the County Recording Office and Planning Board approval by resolution of site plans as a condition for the issuance of a permit for any development, except as provided in Article XXII or in those cases specified below where Zoning Board of Adjustment approval shall be required.
(2)
The Planning Board, when reviewing applications for approval of subdivision plats, site plans or conditional uses, shall have the power to grant, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment, variances pursuant to N.J.S.A. 40:55D-70c.
(3)
Additionally, the Planning Board, when reviewing applications for approval of subdivision plats, site plans or conditional uses, shall have the power to grant, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment, direction pursuant to N.J.S.A. 40:55D-34 for issuance of a permit 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 and direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit for a building or structure not related to a street.
B.
The Zoning Board of Adjustment of the City of Absecon City shall enforce the zoning articles of this chapter, except as provided above, and in certain instances site plan/subdivision articles.
(1)
Zoning. The City Council of the City of Absecon City provides, with passage of this chapter, for continuation of the City's Zoning Board of Adjustment and vests the Board with the power to:
(a)
Hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision or refusal made by an administrative office based on or made in the enforcement of the Zoning Ordinance.
(b)
Hear and decide, in accordance with provisions of the zoning articles of this chapter, requests for interpretation of the Zoning Map or articles or for decisions upon other special questions upon which the Board is authorized to pass by the zoning articles.
(c)
Grant a hardship variance where the strict application of the zoning articles of this chapter, as they apply to a specific piece of property of exceptional narrowness, shallowness, shape, exceptional topographic conditions or other extraordinary and exceptional situation or condition, would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of such property. However, no such variance shall be granted to allow a structure or use in a district restricted against such structure or use, and provided that the proposed development does not require subdivision/site plan or conditional use approval of the Planning Board.
(d)
Grant, in particular cases and for special reasons, a variance to allow a structure or use in a district restricted against such structure or use, but only by an affirmative vote of at least five members.
(e)
Direct issuance of a permit for a building or structure in the bed of a mapped street, public drainageway, flood-control basin or public area reserved and issuance of a permit for a building or structure not related to a street in conjunction with N.J.S.A. 40:55D-32, 40:55D-33 and 40:55D-36.
(f)
Grant conditional use approval in conjunction with review for a use variance as specified in paragraph B(1)(d) above, provided that the Board shall have 120 days from the filing of a completed application with the City Clerk or such additional time as may be mutually agreeable to the Board and developer.
§ 224-191 County review.
[1997 Code § 224-191]
Wherever review or approval of an application by the County Planning Board is required by Section 5 of P.L. 1968, c. 265 (N.J.S.A. 40:27-6.3) for submissions or Section 8 of P.L. 1968, c. 285 (N.J.S.A. 40:27-6.6) for site plans, the Municipal Boards (Planning and Zoning) shall condition all approvals upon timely receipt of a favorable report on the application by the County Planning Board.
§ 224-192 Appeals.
[1997 Code § 224-192]
A.
The appeal process for official actions taken with regard to any portion of this chapter shall be as outlined in prior articles and sections and as further outlined below.
(1)
Appeals to the board of adjustment.
(a)
Appeals may be taken by an interested party affected by an administrative office of the City of Absecon City based on or made in the enforcement of the zoning articles of this chapter. Such appeal shall be taken within 65 days of official action by filing a notice of appeal with the office from which the appeal is taken specifying the grounds of such appeal.
(b)
The Board shall render a decision not later than 120 days after the date an appeal is taken. In its decision the Board may reverse or affirm, wholly or in part, or modify the action, order, requirement, interpretation or determination of the original decision. An appeal to the Board shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the officer from whose action the appeal is taken certifies to the Board, after filing of the appeal, that by reason of facts stated in the certificate a stay would, in his/her 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.
(2)
Appeals to the City of Absecon City Council.
(a)
Any interested party may appeal to the City Council any final decision of the Board of Adjustment approving an application for development pursuant to N.J.S.A. 40:55D-17(d).
(b)
All appeals to the City Council shall be conducted in accordance with the requirements of the State of New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
(c)
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 and to the board from which the appeal is taken 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.
(d)
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 unless the appellant consents, in writing, to an extension of such period. The appellant shall arrange for a transcript for use by the Governing Body. 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 without such written consent of the appellant shall constitute a decision affirming the action of the board.
(e)
The Governing Body may reverse, remand or affirm, wholly or in part, or may modify the final decision of the Planning Board or Board of Adjustment, as the case may be.
(f)
The affirmative vote of a majority of the full authorized membership of the Governing Body shall be necessary to reverse, remand or modify any final action of either board.
(g)
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 board from whose action the appeal is taken certifies to the Governing Body, after the notice of appeal shall have been filed with such 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 board from which the appeal is taken and on good cause shown.
(h)
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, if there is one, or in a newspaper of general circulation in 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.
B.
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.
C.
Nothing in this chapter shall be construed to restrict the right of any party to obtain a review by any court of competent jurisdiction according to law.
§ 224-193 Hearings.
[1997 Code § 224-193]
Hearings shall be held by the Planning and Zoning Boards for all developmental applications. Notice of such hearing in accordance with the public notice requirements listed below shall be provided for by the applicant/developer/subdivider for all applications, except those for minor subdivisions and conventional site plans and final subdivision approval if such applications do not require the Planning Board to exercise its ancillary jurisdiction pursuant to N.J.S.A. 40:55D-60.
A.
Public notice shall be given pursuant to N.J.S.A. 40:55D-12. At least 10 days prior to the date of the hearing, a notice of hearing shall be given stating the date, time and place of the hearing and 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 Municipal Tax Assessor's office and the location and times at which maps and exhibits for which approval is sought are available for inspection.
(1)
Such notice shall be given as follows:
(a)
By publication in the official newspaper of the City of Absecon City.
(b)
To all owners of real property as shown on the current tax duplicate located within 200 feet in all directions of the property which is the subject of the hearing, which notice shall be given by serving a copy thereof on the owner, as shown on the current tax duplicate, or his agent in charge of the property or by mailing a copy thereof by certified mail to the property owner at his address as shown on said current tax duplicate. It is not required that a return receipt be obtained. Notice is deemed complete upon mailing (N.J.S.A. 40:55D-14).
(c)
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, the 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. Where notice is required to be given to owners of all real property as shown on the current tax duplicate and within 200 feet of the subject property, this requirement shall be deemed satisfied by notice to the condominium association in the case of any unit owner whose unit has a unit above or below it.
(d)
To the Clerk of any adjoining municipality or municipalities and to the County Planning Board when the property involved is located within 200 feet of said adjoining municipality or municipalities, which notice shall be given by personal service or certified mail.
(e)
To the County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the Official County Map or a County Master Plan or adjoining other county land.
(f)
To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.
(g)
To the Director of the Division of State and Regional Planning in the Department of Community Affairs when the hearing involves an application for development of property which exceeds 150 acres or 500 dwelling units, in which case the notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk, pursuant to N.J.S.A. 40:55D-10b.
(2)
Upon written request from the applicant, the City Clerk will provide a certified list from the current tax duplicate of the names and addresses of owners within 200 feet of the subject property to whom the applicant is required to give notice for a fee not to exceed $0.025 cents per name or $10, whichever is greater.
B.
Each decision on an application for development shall be reduced to writing as provided in this subsection and shall include findings of fact and conclusions based thereon.
(1)
Failure of a motion to approve an application for development to receive the number of votes required for approval shall be deemed an action denying the application.
(2)
The board may provide such written decision and findings and conclusions either on the date of the meeting at which it takes action to grant or deny approval or, if the meeting at which such action is taken occurs within the final 45 days of the applicable time period for rendering a decision on the application for development, within 45 days of such meeting by the adoption of a resolution of memorialization setting forth the decision and the findings and conclusions thereon. An action resulting from the failure of a motion to approve an application shall be memorialized by resolution as provided above, notwithstanding that the time at which such action occurs is within the applicable time period for rendering a decision on the application.
(3)
The adoption of a resolution of memorialization shall not be construed to alter the applicable time period for rendering a decision on the application for development. Such resolution shall be adopted by a vote of a majority of the members who voted for the action previously taken, and no other member shall vote thereon. The vote of such resolution shall be deemed to be a memorialization of an action of the Board and not to be an action of the Board, except that failure to adopt such a resolution within the forty-five-day period shall result in the approval of the application for development, notwithstanding any prior action taken thereon.
(4)
Whenever a resolution of memorialization is adopted, the date of such adoption shall constitute the date of the decision for purposes of the required mailings, filings and publications.
(5)
A copy of the decision shall be mailed within 10 days of the date of the decision to the applicant or, if represented, then to his attorney without separate charge and to all who request a copy of the decision for a reasonable fee. A copy of the decision shall also be filed in the office of the City Clerk. The City Clerk shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at reasonable hours.
(6)
A brief notice of the decision shall be published in the newspaper of the City of Absecon City by the Secretary of the Zoning and Planning Boards, and the cost is to be paid by the applicant. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision.
§ 224-194 Affordable housing.
[Ord. No. 11-2008 § 224-194]
A.
Short title. This section shall be known and may be cited as: Affordable Housing Ordinance of Absecon City.
B.
Purpose. The Mount Laurel decisions stand for the principle that each municipality has a constitutional obligation to provide opportunities for the development of low- and moderate-income housing. The Mount Laurel decisions and the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., dictate that every municipality in the State is required to provide opportunities for the development of its "fair share" of very low, low- and moderate-income housing. The purpose of this section is to advance the public welfare and comply with the municipality's constitutional obligation to provide the opportunity for the municipality's fair share of affordable housing.
C.
Development required to provide affordable housing.
(1)
Within any zoning district permitting residential development or as a result of a use variance permitting residential development, developers shall provide a minimum of one affordable housing unit for every four market rate housing units or the developer may make contribution in lieu of providing affordable housing in accordance with paragraph E.
(2)
Developers within any zone permitting nonresidential development shall provide a minimum of one affordable housing unit for every 16 jobs created. The developer of the nonresidential development is required to construct affordable housing in the Absecon Train Station Area Overlay, or the developer may make a contribution in lieu of providing affordable housing in accordance with paragraph E.
(3)
Within the Absecon Train Station Overlay Area, developers are required to provide affordable housing units if they avail themselves of the incentives set forth within Section 224-281, Density; Section 224-282, Building Coverage; Section 224-282, Impervious Coverage; Section 224-282, Building Height and Section 224-285, Parking Reduction. The development shall include a minimum of two affordable housing units for every eight market rate units [or a minimum of 25%]. Developers cannot make contributions in lieu of constructing affordable housing units in the Absecon Train Station Area Overlay.
D.
Procedure.
(1)
The units, once quantified, are specifically identified in the site plan, along with the support services required to sustain low- and moderate-income residences. It is the intent herein not only to encourage the development of affordable housing but also to encourage and sustain a quality of life for the low- and moderate-income residents within the proposed development.
(2)
In preparing plans for low- and moderate-income housing, developers shall follow the following minimum criteria:
(3)
In pursuing the development of low- and moderate-income housing, the Planning or Zoning Board may grant bulk variances and/or design waivers necessary to assist in adjusting the site plan configuration, thereby allowing the placement of disbursed low- and moderate-income housing within the limits of any specific project. This procedure will enable the City to work closely with the developer to tailor a specific site plan in the event that traditional zoning controls frustrate good site planning.
(4)
The developer shall deed-restrict all newly constructed low- and moderate-income sales units for a period of not less than 30 years and provide copies of a Council On Affordable Housing adopted restrictive covenant and mortgage lien along with details of the methods of screening applicants to be used as part of the site plan review process.
(5)
Prior to the issuance of the first certificate of occupancy for any development, the developer shall submit to the administrative agent as designated by City Council a list of all low- and moderate-income units to be developed. This list shall include:
(6)
The designated administrative agent shall maintain a comprehensive file on low- and moderate-income housing units. Prior to the issuance of a certificate of occupancy or certificate of continued occupancy, a statement from the screening agent certifying the proposed occupant's eligibility shall be submitted to the designated administrative agent and maintained in the file.
(7)
Affordable housing units to be built in accordance with the following schedule:
Percentage of Market-rate Units Completed | Minimum Percentage of Low- and Moderate-Income Units Completed | |
|---|---|---|
25 | 0 | |
25 + 1 unit | 10 | |
50 | 50 | |
75 | 75 | |
90 | 100 |
(8)
Affirmative marketing. At the time of the initial occupancy of low- and moderate-income units the developer must demonstrate that an outreach and marketing program has been implemented to encourage participation of local persons in an attempt to see that up to 50% of the units be occupied by persons currently living or working in Absecon City.
(9)
Prior to the issuance of a certificate of occupancy, the developer shall pay to the designated administrative agent any management or marketing fees adopted by the agency.
(10)
Contributions in lieu of constructing affordable housing units on site shall only be used to fund eligible affordable housing activities within the Absecon Train Station Area Overlay (Article XXXIII).
(11)
Contributions in lieu of constructing affordable units shall be deposited in a separate, interest-bearing housing trust fund.
E.
Contribution in lieu of constructing affordable housing units.
(1)
Within any zoning district permitting residential development or as a result of a use variance permitting residential development, developers may make a contribution of $35,000 (or an amount set by N.J.A.C. 5:94-5.4 Amount and duration of contributions, whichever is greater) per affordable housing unit in lieu of providing affordable housing.
(2)
Developers within any zone permitting nonresidential development may make a contribution of $35,000 (or an amount set by N.J.A.C. 5:94-5.4 Amount and duration of contributions, whichever is greater) per affordable housing unit in lieu of providing affordable housing.
(3)
Residential developments with less than eight market rate units or nonresidential developments creating less than 25 jobs shall make a pro-rata share contribution in lieu of constructing affordable housing.
F.
Exemptions.
(1)
Developers that have received preliminary subdivision or site plan approval prior to the effective date of this section shall be exempt from providing affordable housing unless the developer seeks a substantial change in the approval.
(2)
Religious organizations that engage in construction activities for religious purposes shall be exempt from providing affordable housing.
(3)
Development by public agencies, public hospitals, non-profit educational or religious institutions, charitable or not-for-profit entities legally established in accordance with the laws of the State of New Jersey shall be exempt from providing affordable housing.
G.
Collection of contribution in lieu of constructing affordable housing.
(1)
Developers shall pay 50% of the contribution to Absecon City at the issuance of permits.
(2)
Developers shall pay the remaining contribution to Absecon City at the issuance of certificates of occupancy. The developer shall be responsible for paying the difference between the contribution at certificate of occupancy and the contribution made at the issuance of building permit.
(3)
Contributions that are challenged shall be placed in an interest bearing escrow account by the municipality. If all or a portion of the contested contributions are returned to the developer, the accrued interest on the returned amount shall also be returned.
H.
Housing trust fund.
(1)
There is hereby created an interest bearing trust fund bank account with a bank to be named by City Council for the purpose of receiving contributions from residential and nonresidential developers. All contributions made by developers pursuant to this section shall be deposited in this fund. No money shall be expended from the housing trust fund unless the expenditure conforms to a spending plan in accordance with paragraph I. below.
I.
Use of funds.
(1)
Money deposited in a housing trust fund shall be used for the construction of affordable housing and affordable housing activities in the Absecon Train Station Overlay Area. Contributions will be used to help fund affordable housing units and affordable housing activities in the Absecon Train Station Area Overlay (Article XXXIII). Allowable housing activities include, subsidies to reduce the cost of construction, assisting eligible buyers with closing costs, subsidize the improvements to infrastructure owned by the City of Absecon, i.e. streets, sidewalks in the City's right-of-way and administrative costs necessary to implement Absecon's housing element.
(2)
Absecon will dedicate no more than 20% of contributions made for administrative purposes. Those purposes shall include but not necessarily be limited to salaries and benefits for municipal employees or consultant fees necessary to develop or implement a rehabilitation program; a housing element; and an affirmative marketing program. These monies shall be spent either in the one-year period of protection sought by the City; during the implementation of the current plan which will extend beyond the one-year period of protection and/or during the period of implementation of any affordable housing plan for the third housing cycle.
K.
Inconsistency. Any part or parts of any Ordinances which are found to be inconsistent with this section shall be deemed to have been repealed to the extent of such inconsistency.
L.
Effective date. This section shall take effect upon passage and publication according to law and the filing of same with the County Planning Board in accordance with N.J.S.A.40:55D.