Atlantic Highlands City Zoning Code
ARTICLE III
Administration
§ 150-7 Planning Board.
A.
Establishment.
(1)
The Planning Board presently in existence pursuant to N.J.S.A. 40:55D-23 is hereby continued to consist of nine members of the following four classes and four alternates. All members of the Planning Board, except for the Class II members set forth below, shall be municipal residents.
[Amended 1-20-2001 by Ord. No. 2-2001][1]
(a)
Class I: the Mayor, or the Mayor's designee in the absence of the Mayor.
(b)
Class II: one of the officials of the Borough, other than the Mayor or 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 N.J.S.A. 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 alternate members.
(c)
Class III: a member of the Borough Council to be appointed by it.
(d)
Class IV: six other citizens of the Borough to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, position or employment, except that one member may be a member of the Historic Preservation Commission, if there be an Historic Preservation Commission, and one may be a member of either the Atlantic Highlands Board of Education or the Henry Hudson Regional School Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 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 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. For the purpose of this section, membership on a municipal board or commission whose function is advisory in nature, and the establishment of which is discretionary and not required by statute, shall not be considered the holding of municipal office.
(2)
Alternates. The Mayor may also appoint up to four alternates who shall be qualified, designated, and for the terms as specified in N.J.S.A 40:55D-23.1.
[Amended 1-20-2001 by Ord. No. 2-2001]
B.
Terms.
(1)
The term of the member composing Class I shall correspond to his official tenure. If the member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's 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 comes first.[2]
(2)
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.
(3)
The terms of all Class IV members first appointed pursuant to N.J.S.A. 40:55D-23 shall be so determined that to the greatest practicable extent the expiration of such term 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.
(4)
In the event that a choice must be made as to which alternate member is to vote, the lowest numbered alternate member(s) shall vote.
[Amended 1-20-2001 by Ord. No. 2-2001]
C.
Conflicts. No member or alternate member of the Planning Board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
D.
Vacancies. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment, as above provided, for the unexpired term only.
E.
Removal. 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.
F.
Organization of Board. 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 municipal employee designated by it.
G.
Planning Board Attorney. 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 Board shall not expend an amount, exclusive of gifts or grants, in excess of the amount appropriated by the Council for its use.
H.
Expenses, experts and staff. The Borough Council shall make provisions in its budget and appropriate funds for the expenses of the Planning Board. The Planning Board may employ or contract for the services of experts and other staff and services as it may deem necessary. The Planning Board shall not, however, exceed, exclusive gifts or grants, the amount appropriated by the Borough Council for its use.
I.
Powers and duties. The Planning 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 (N.J.S.A. 2A:67A-1 et seq.) shall apply. The Planning Board shall have the following powers and duties:
(1)
To prepare, and after public hearing, adopt or amend a master plan or component parts thereof, to guide the use of lands within the Borough in a manner which protects public health and safety and promotes the general welfare, in accordance with the provisions of N.J.S.A. 40:55D-28.
(2)
To administer site plan and land subdivision review in accordance with the provisions of this chapter and N.J.S.A. 40:55D-37 through 40:55D-59.
(3)
To grant exceptions from certain requirements for subdivision and site plan approval pursuant to N.J.S.A. 40:55D-51.
(4)
To approve conditional use applications in accordance with the provisions of this chapter and pursuant to N.J.S.A. 40:55D-67.
(5)
To consider and make report to the Borough Council within 35 days after referral as to any proposed development regulation submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26(a). The report shall include identification of any provisions in the proposed development regulation, revision or amendment which are inconsistent with the Master Plan and recommendations concerning these inconsistencies and any other matters as the Board deems appropriate. The Borough Council, when considering the adoption of a development regulation, revision or amendment thereto, shall review the report of the Planning Board and may disapprove or change any recommendation by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendation. Failure of the Planning Board to transmit its report within the thirty-five-day period provided herein shall relieve the Borough Council from the requirements of this subsection in regard to the proposed development regulation, revision or amendment thereto referred to the Planning Board. Nothing in this section shall be construed as diminishing the application of the provisions of N.J.S.A. 40:55D-32 to any official map or an amendment or revision thereto or of N.J.S.A. 40:55D-62 to any zoning ordinance or any amendment or revision thereto.
(6)
To participate in the preparation and review of programs or plans required by state or federal law or regulations.
(7)
To assemble data on a continuing basis as part of a continuing planning process.
(8)
To annually prepare a program of municipal capital improvement projects over a term of six years, and amendments thereto, and recommend same to the Borough Council pursuant to the provisions of N.J.S.A. 40:55D-29.
(9)
When reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant:
[Amended 5-14-2014 by Ord. No. 07-2014]
(a)
Variances pursuant to N.J.S.A. 40:55D-70(c).
(b)
Direction pursuant to N.J.S.A. 40:55D-34 for issuance of permit for 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.
(c)
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.
(d)
Waiver of site plan approval where the Planning Board finds that the application does not involve or require improvements that affect the chapter standards or requirements relating to:
[1]
Preservation of existing natural resources on the site;
[2]
Safe and efficient vehicular and pedestrian circulation, parking and loading;
[3]
Screening, landscaping and location of structures;
[4]
Exterior lighting needed for safety reasons in addition to any requirements for streetlighting;
[5]
Conservation of energy and use of renewable energy resources;
[6]
Recycling of designated recyclable materials.
(e)
Whenever relief is requested pursuant to this subsection, notice of a hearing on the application for development shall include reference to the request for a variance, waiver or direction for issuance of a permit as the case may be.
(10)
Review of capital projects pursuant to N.J.S.A. 40:55D-31.
(11)
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 Borough bodies, agencies, or officers.
(12)
The Borough Council may, by ordinance, provide for the reference of any matters or class of matters to the Planning Board before final action thereon by a municipal body or municipal officer having final authority hereon. Whenever the Planning Board shall have made a recommendation regarding a matter authorized by ordinance to another municipal body, such recommendation may be rejected only by a majority of the full authorized membership of such other body.
J.
Citizens Advisory Council. The Mayor may appoint one or more persons as a Citizen Advisory Council 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 by the Board. Such person or persons shall serve at the pleasure of the Mayor.
K.
Environmental Commission. The Mayor may appoint an Environmental Commission. Whenever the Environmental Commission has prepared and submitted to the Planning Board an index of the natural resources of the municipality, 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.
L.
Simultaneous review. The Planning Board shall have the power to review and approve or deny conditional uses or site plans simultaneously with review for subdivision approval without the developer being required to make further application to the Planning Board, or the Planning Board being required to hold further hearings. The longest time period for action by the Planning Board, whether it be for subdivision, conditional use or site plan approval, shall apply. Whenever approval of a conditional use is requested by the developer, notice of the hearing on the plat shall include reference to the request for such conditional use.
§ 150-8 Planning Board to act as Board of Adjustment.
A.
Authorization. Pursuant to N.J.S.A. 40:55D-25(c), the Planning Board is hereinafter empowered to exercise all the powers and authority of a Board of Adjustment as set forth in the Municipal Land Use Law,[1] but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to N.J.S.A. 40:55D-70(d).
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
B.
Additional powers of the Planning Board.
(1)
The Planning Board shall have the power to:
(a)
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the provisions of this chapter adopted pursuant to N.J.S.A. 40:55D-62 through 40:55D-68.
[1]
Appeals to the Planning Board. Each appeal shall be taken within the 20 days prescribed by N.J.S.A. 40:55D-72 by filing a notice of appeal with the officer from whom the appeal was taken, together with three copies of said notice with the Secretary of the Planning Board. Said notice of appeal shall specify the grounds for said 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.
[2]
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 him 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 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.
[3]
The Planning Board may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq., 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.
(b)
Hear and decide requests for interpretation of the Zoning Map[2] or zoning provisions of this chapter adopted pursuant to N.J.S.A. 40:55D-62 through 40:55D-68, or for decisions upon other special questions upon which such Board is authorized by this chapter to pass.
[2]
Editor's Note: The Zoning Map is on file in the Borough offices.
(c)
Grant, upon an application or an appeal, relief from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68, except those departures enumerated in N.J.S.A. 40:55D-70d, where:
[1]
The strict application of such regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of a property for any of the following reasons:
[a]
By reason of exceptional narrowness, shallowness or shape of the specific piece of property; or
[b]
By reasons of exceptional topographic conditions or physical features uniquely affecting the specific piece of property; or
[c]
By reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon; or
[2]
The purposes of N.J.S.A. 40:55D-1 et seq. would be advanced by a deviation from the requirements of this chapter and the benefits of the deviation would substantially outweigh any detriment.
(d)
Grant, upon an application or an appeal, in particular cases and for special reasons, by affirmative vote of at least five members, a variance to allow departures from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68 to permit the following:
[1]
A use or principal structure in a district restricted against such use or principal structure;
[2]
An expansion of a nonconforming use;
[3]
Deviation from a specification or standard pertaining solely to a conditional use;
[4]
An increase in the permitted floor area ratio;
[5]
An increase in the permitted density, except as applied to the required lot area for a lot or lots for detached one- or two-dwelling-unit buildings which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision;
[6]
A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.
No variance or other relief may be granted under the terms of N.J.S.A. 40:55D-70d unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and this chapter. An application under this section may be referred to any appropriate person or agency, provided such reference shall not extend the period of time within which the Planning Board shall act. |
(2)
The Planning Board shall have the power to grant to the same extent and subject to the same restrictions as the Planning Board subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37 through 40:55D-59 or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the proposed development requires approval by the Planning Board of a variance pursuant to N.J.S.A. 40:55D-70d. The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the Planning Board. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning regulations. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided in N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to the aforesaid Subsection d of N.J.S.A. 40:55D-70 shall not be required.
(3)
The Planning Board shall have the power to 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 on the Official Map.
(4)
The Planning Board shall have the power to direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
C.
Report to Borough Council. The Planning Board shall, at least once a year, review its decision on applications and appeals for variances and prepare and adopt by resolution a report on its findings on the provisions of this chapter which were the subject of variance requests and its recommendations for amendment or revision of this chapter, if any. The Planning Board shall send copies of the report and resolution to the Borough Council.
D.
Appeals from Planning Board to governing body. Any interested party may appeal to the governing body any final decision of the Planning Board 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 shall be made in accordance with the procedure set forth in N.J.S.A. 40:55D-17.
§ 150-9 General Planning Board provisions.
A.
Meetings.
(1)
The Planning Board shall by its rules fix the time and place for holding its regular meetings. Regular meetings shall be scheduled not less than once a month and shall be held as scheduled unless cancelled for lack of applications for development to process.
(2)
The Planning Board may provide for special meetings, at the call of the Chairman, or in his absence by the Vice Chairman, or on the request of any two of its members, which shall be held on notice to its members and the public in accordance with municipal regulations and N.J.S.A. 10:4-6 et seq.
(3)
No action shall be taken at any meeting without a quorum being present.
(4)
All action shall be taken by a majority vote of members present at the meeting except as otherwise required by N.J.S.A. 40:55D-32, 40:55D-34, 40:55D-62, 40:55D-63, 40:55D-17e, 40:55D-26a and b and 40:55D-70d. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.
(5)
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, N.J.S.A. 10:4-6 et seq.
(6)
An executive session for the purpose of discussing and studying any matters to come before the agency shall not be deemed a regular or special meeting within the meaning of N.J.S.A. 40:55D-1 et seq.
B.
Minutes. Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Planning Board and of the persons appearing by attorney, the action taken by the Planning 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 Planning Board Secretary. 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 reasonable fee for reproduction of the minutes in an amount sufficient to cover the cost of such reproduction of the minutes for his use.
C.
Hearings.
(1)
Required hearings. The Planning Board shall hold a hearing on each application for development.
(2)
Rules for conducting hearings. The Planning Board shall 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 this chapter.
(3)
Filing of documents. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the Planning Board Secretary. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
(4)
Oaths. 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, and the provisions of the County and Municipal Investigations Law, N.J.S.A. 2A:67A-1 et seq., shall apply.
(5)
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 witness.
(6)
Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
(7)
Verbatim recording. The Planning Board shall provide for the verbatim recording of the proceedings by either a stenographer or by mechanical or electronic means. The Planning Board shall furnish a transcript or duplicate recording in lieu thereof, on request to any interested party at his expense, provided that the Borough Council may provide by ordinance for the municipality to assume the expense of any transcripts necessary for approval to the Borough Council pursuant to N.J.S.A. 40:55D-17 of decisions by the Planning Board pursuant to N.J.S.A. 40:55D-70d, up to a maximum amount as specified by these regulations.
(8)
Transcript charge. The Planning Board in furnishing a transcript of the proceeding to an interested party at his expense shall not charge such interested party more than the maximum permitted in N.J.S.A. 2A:11-15, as amended.[1] Said transcript shall be certified in writing by the transcriber to be accurate.
[1]
Editor's Note: N.J.S.A. 2A:11-15 was repealed by L. 1991, c. 119, § 4, effective 4-25-1991.
(9)
Voting eligibility. A member or alternate member 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 or her absence from one or more of the meetings; provided, however, that such Board member or alternate member has available to him or her the transcript or recordings of all of the hearing from which he or she was absent, and certifies in writing to the Planning Board that he or she has read such transcript or listened to such recording. This shall not be construed to authorize any hearing to be held whenever less than a quorum is present.
D.
Notice requirements for hearing. Whenever public notice of a hearing is required on an application for development, the applicant shall give notice thereof at least 10 days prior to the date of the hearing in accordance with the following:
(1)
Public notice of a hearing on an application for development shall be given for all of the following:
(a)
Appeal or variance pursuant to N.J.S.A. 40:55D-70.
(b)
Directive for issuance of a building permit pursuant to N.J.S.A. 40:55D-34 or 40:55D-36.
(c)
Conditional uses pursuant to N.J.S.A. 40:55D-67.
(d)
Preliminary major subdivision plats.
(e)
Preliminary major site plans.
(f)
Waiver of site plan approval.
[Added 5-14-2014 by Ord. No. 07-2014]
(2)
Public notice shall be given by publication in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough.
(3)
Notice of a hearing requiring public notice shall be given to the owners of all real property as shown on the current tax duplicate or duplicates located 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 serving a copy thereof on the owner as shown on the said current tax duplicate or his agent in charge of the property, or 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 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. Notice of a hearing requiring public notice pursuant to Subsection D(1), above, shall be given to public utilities and cable television companies in accordance with Subsection D(8).
(4)
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, which notice shall be in addition to the notice required to be given to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.
(5)
Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on all applications 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 situated within 200 feet of a municipal boundary.
(6)
Notice shall be given by personal service or certified mail to the Commissioner of the New Jersey Department of Transportation of a hearing on any application for development of property adjacent to a state highway.
(7)
Notice of hearings on all applications for approval of a major subdivision or a site plan not defined as a minor site plan in this chapter, requiring public notice pursuant to Subsection D(1), above, shall be given by personal service or certified mail to the corporate secretary of all public utilities and the general manager of all cable television companies that own land or any facility or that possess a right-of-way or easement situated within 200 feet in all directions of the property which is the subject of such hearing. In addition to any notification requirement otherwise imposed under this chapter, an applicant seeking approval of a development which does not require notice as provided above shall be required to provide notice, by personal service or certified mail, to the corporate secretary of any public utility and the general manager of any cable television company that possesses a right-of-way or easement situated within the property limits of the property which is the subject of the application for development approval under this section.
(8)
Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.
(9)
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, and 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 for public inspection as required by law.
(11)
List of property owners furnished. Upon the written request of an applicant, the Municipal Clerk shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to this chapter. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding. A fee shall be charged for such list.
E.
Decisions. Each decision on any application for development shall be reduced to writing and shall include findings of facts and conclusions based thereon.
(1)
Reduction to writing shall be accomplished through:
(a)
A resolution adopted at a meeting held within the applicable time period for taking action on the application for development; or
(b)
A resolution adopted at a meeting held not later than 45 days after the date of the meeting at which action to grant or deny approval was taken memorializing said action.
(c)
Where the Planning Board fails to adopt a resolution, any interested party may apply to Superior Court in a summary manner for an order compelling the agency to reduce its findings and conclusions to writing within a stated time and the cost of the application, including attorney's fees, shall be assessed against the municipality.
(2)
The following members shall be eligible to vote on the resolution:
(a)
Where the action taken resulted from the failure of a motion to approve an application, those members voting against the motion for approval shall be the members eligible to vote on the resolution.
(b)
In all other circumstances, only the members who voted for the action taken shall be eligible to vote on the resolution.
(3)
The following shall apply to adoption of the resolution:
(a)
The vote on a resolution shall be deemed to be a memorialization of the action of the agency and not to be an action of the agency.
(b)
The vote of a majority of those eligible members who are present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution.
(c)
The date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings, and publications required.
(4)
Copies of the decision shall be distributed by the Planning Board Secretary as follows:
(a)
A copy shall be mailed within 10 days of the date of decision to the applicant, or if represented then to his attorney, without separate charge.
(b)
A copy shall be filed in the office of the Planning Board Secretary and be made available for public inspection during reasonable hours.
(c)
A copy shall be made available to any interested party for a reasonable fee in an amount sufficient to cover the cost of such copy.
(5)
A brief notice of the decision shall be published in the official newspaper(s) of the Borough.
(a)
Such publication shall be arranged and proof of publication shall be obtained by the applicant. All costs for publication shall be paid by the applicant. Said notice shall be sent by the applicant within 10 days of the date of decision. Proof of publication shall be filed with the Planning Board within 20 days of the decision. In the event that proof of publication is not filed by the applicant within 20 days, the Secretary of the Planning Board shall have the right to publish said decision in the official newspaper and all costs for publications shall 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 notice whether arranged by the Borough or the applicant.
(b)
Such notice shall be published within 30 days of the date of decision, or 20 days of the date of mailing of a copy of the decision by the Planning Board Secretary, whichever is later, or within such other appropriate period as may be determined by the Planning Board at the time of decision.
(c)
Failure to publish as herein required shall render any approvals null and void.
F.
Conditional approvals.
(1)
In the event that a developer submits an application for development proposing a development that is barred or prevented, directly or indirectly, by legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health and welfare, the Planning Board shall process such application for development in accordance with the provisions of N.J.S.A. 40:55D-1 et seq. and this chapter, and, if such application for development complies with the provisions of this chapter, the Planning Board shall approve such application conditioned on removal of such legal barrier to development.
(2)
In the event that development proposed by an application for development requires an approval of a governmental agency other than the Planning Board, the Planning Board shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that the Planning Board shall make a decision on any application for development within the time period provided in this chapter and N.J.S.A. 40:55D-1 et seq. or within an extension of such period as has been agreed to by the applicant unless the Planning Board is prevented or relieved from so acting by the operation of law.
(3)
Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3, in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the Planning Board shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time period.
(4)
The Planning Board may impose such other conditions as it deems appropriate.
(5)
In all cases the Planning Board shall include a condition of approval setting forth the time within which all conditions of approval must be satisfied by the applicant. Failure of the applicant to meet all conditions of approval within the time specified or within such extensions thereof as the Planning Board may, from time to time, grant upon the request of the applicant shall render any approvals null and void.
(6)
Tolling of running of period of approval. In the event that, during the period of approval heretofore or hereafter granted to an application for development, the developer is barred or prevented, directly or indirectly, from proceeding with the development otherwise permitted under such approval by a legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health or welfare and the developer is otherwise ready, willing and able to proceed with said development, the running of the period of approval shall be suspended for the period of time said legal action is pending or such directive or order is in effect.
G.
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 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 said 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 municipality will be adequately protected.
H.
Time for decision. After the date an appeal is taken from the decision of a municipal officer or the submission of a complete application for development to the Administrative Officer, the Planning Board shall render its decision within the maximum number of days as specified below or within such further time as may be consented to by the applicant. Where more than one type of application is involved, the longer time period shall apply.
Type of Application | Time Period (days) | ||
|---|---|---|---|
Site plans | |||
Minor | 45 | ||
Preliminary approval (10 acres or less, 10 units or less) | 45 | ||
Preliminary approval (more than 10 acres or 10 units) | 95 | ||
Final approval | 45 | ||
Subdivisions | |||
Minor | 45 | ||
Preliminary approval (10 lots or less) | 45 | ||
Preliminary approval (more than 10 lots) | 95 | ||
Final approval | 45 | ||
Conditional use authorization | 95 | ||
Variance | 120 | ||
Appeal from the decision of a municipal officer | 120 | ||
Direction for issuance of a building permit | 120 | ||
I.
Separation of applications. A developer whose proposed development requires a variance or direction of the issuance of a permit may elect to submit a separate application requesting the variance or direction of the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan, or conditional use. The separate granting of the variance or direction of the issuance of a permit shall be conditioned upon the granting of all required subsequent approvals by the same approving authority. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided for the approval in question, and any special vote shall not be required. In the event that the developer elects to submit separate consecutive applications, the time period for granting or denying each separate application shall be as provided in Subsection H above.
J.
Time for exercise of variance. Any variance from the terms of any ordinance hereafter granted permitting the direction or alteration of any building, 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 the variance, or unless such permitted use has actually been commenced, within 12 months from the date of entry of the decision; provided, however, that the running of the period of limitation herein provided shall be suspended from the date of filing an appeal from the decision to the Borough Council or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding. Where the variance is part of a subdivision or site plan approval, the period of limitation shall coincide with the approval specified in Article IV. If the original applicant, submits a written request to the approving agency not less than 30 days prior to the expiration of the original approval, the time limit set forth above may be extended by the approving agency, for good cause shown, for a period not to exceed two consecutive years, commencing on the original date of expiration. If such construction or alteration has not been actually commenced on each and every structure permitted by the variance, or such permitted use has not actually been commenced, within 24 months from the date of the commencement of the extension, the processing of a completely new application for approval will be required. Official notice of any extensions granted shall be published in two official newspapers of the municipality, within 15 days after the extension is approved.
[Amended 10-24-2012 by Ord. No. 13-2012]
§ 150-10 Certificates and permits.
A.
Development permit.
(1)
Development permits shall hereafter be secured from the Zoning Officer prior to:
(b)
The erection, construction, alteration, repair, remodeling, conversion, removal or destruction of any building or structure;
(c)
Application for and/or issuance of any permit for a new or expanded or relocated sign;
(d)
Application for and/or issuance of any permit for erection of a fence;
(e)
Any change in use or change in nonresidential occupancy;
(f)
The excavation, removal, or addition of soil or fill to or from any site exceeding 10 cubic yards or any alteration exceeding 5,000 square feet in the natural condition of any undeveloped parcel of land, including but not limited to the alteration of drainage patterns, removal of soil, regrading, and removal of trees and ground cover; provided, however, that such alterations located on and necessary to the operation of a farm as defined in this chapter shall not require a development permit;
(g)
Any use of any portion of any parcel of land for any activity regulated by this chapter;
(h)
The construction of any site improvement either above or below ground;
(i)
The issuance of any certificate of occupancy where no building permit was previously required.
(2)
An application for development permit shall be in writing by the owner or his authorized agent and include the following unless the Administrative Officer determines that a particular item is not needed in to order to make a decision:
(a)
A statement of the use or intended use or uses of the building, structure or land.
(b)
An elevation drawn to scale of the building or structure to be erected including signs to be placed thereon and their content and manner of construction.
(c)
A plan drawn to scale showing all proposed and/or existing buildings, signs, parking areas, setbacks, and yard distances in exact location to street and lot lines.
(d)
The proportion of existing and proposed lot coverage.
(e)
The location of any wetlands, easements, or floodplains.
(3)
The Zoning Officer shall take action on a complete application for a development permit within 45 days of its submission.
(4)
Prior to issuance of a development permit, the applicant shall have, where applicable, secured other required permits including, but not limited to:
(a)
Access permit from the New Jersey Department of Transportation and/or Monmouth County Engineering Department.
(b)
Drainage permits from the New Jersey Department of Transportation.
(c)
Stream encroachment permit from the New Jersey Department of Environmental Protection.
(d)
Coastal Area Facilities Review Act (CAFRA) permit from the New Jersey Department of Environmental Protection.
(e)
Wetlands permit from the New Jersey Department of Environmental Protection.
(f)
Riparian construction permit from the New Jersey Department of Environmental Protection.
(g)
Waterfront development permit from the New Jersey Department of Environmental Protection.
(h)
Required permits from the U.S. Army Corps of Engineers and U.S. Coast Guard.
(i)
Sewerage and/or industrial waste treatment permit from the New Jersey Department of Environmental Protection.
(j)
Land disturbance permit from the Freehold Area Soil Conservation District.
(k)
Floodplain encroachment permit.
(5)
Prior to the issuance of a development permit, the applicant shall have secured all approvals required by this chapter and shall have met any and all conditions of any Planning Board approval.
B.
Subdivision of land.
(1)
The prospective purchaser, prospective mortgagee, or any other person interested in any land which forms part of a subdivision, or which formed part of such a subdivision three years preceding the effective date of N.J.S.A. 40:55D-1 et seq., may apply in writing to the Administrative Officer for issuance of a certificate certifying whether or not such subdivision has been approved by the Planning Board. Such application shall contain a diagram showing the location and dimension of the land to be covered by the certificate and the name and the owner thereof.
(2)
The Administrative Officer shall make and issue such certificate within 15 days after the receipt of such written application and the fees therefor. Said officer shall keep a duplicate copy of each certificate, consecutively numbered, including a statement of the fee charged, in a binder as a permanent record of his office.
(3)
Each such certificate shall be designated as "certificate as to approval of subdivision of land," and shall certify:
(a)
Whether there exists in the Borough a duly established Planning Board and whether there is an ordinance controlling subdivision of land adopted under the authority of N.J.S.A. 40:55D-1 et seq.
(b)
Whether the subdivision, as it relates to the land shown in said application, has been approved by the Planning Board, and, if so, the date of such approval and any extensions and terms thereof, showing the subdivision of which the lands are a part is a validly existing subdivision.
(c)
Whether such subdivision, if the same has not been approved, is statutorily exempt from the requirement of approval as provided by N.J.S.A. 40:55D-1 et seq.
(4)
The Administrative Officer shall be entitled to demand and receive for such certificate issued by him a reasonable fee in accordance with the fee schedule.
(5)
Any person who shall acquire for a valuable consideration an interest in the lands covered by such certificates of approval of a subdivision in reliance upon the information therein contained shall hold such interest free of any right, remedy or action which could be prosecuted or maintained by the Borough pursuant to the provisions of N.J.S.A. 40:55D-55.
(6)
If the Administrative Officer designated to issue any such certificate fails to issue the same within 15 days after receipt of an application and the fees therefor, any person acquiring an interest in the lands described in such application shall hold such interest free of any right, remedy or action which could be prosecuted or maintained by the Borough pursuant to N.J.S.A. 40:55D-55.
(7)
Any such application addressed to the Municipal Clerk shall be deemed to be addressed to the proper designated officer and the Borough shall be bound thereby to the same extent as though the same was addressed to the designated official.
C.
Construction permit.
(1)
No construction permit shall be issued unless the applicant shall have first secured a zoning permit.
(2)
No building, structure or sidewalk, or curb ramps shall be erected, added to, or structurally altered until a permit thereon has been issued by the Construction Official. All applications for such permits shall be in accordance with the requirements of the New Jersey State Uniform Construction Code. (N.J.A.C. 5:23-2.14)[2]
D.
Certificate of occupancy.
(1)
Development permit required. No certificate of occupancy shall be issued for the use of any building, structure or land unless a development permit shall have first been issued for the use of such building, structure, or land.
(2)
Uses and occupancies after the effective date of this chapter.
[Amended 9-13-2006 by Ord. No. 15-2006]
(a)
No building, structure or land shall be occupied or used until such time as a certificate of occupancy is issued by the Code Enforcement Officer.
(b)
Such certificates shall be issued upon application by the owner, prospective occupant, or purchaser only after the Code Enforcement Officer determines that the facts represented on the application are correct and that the building, structure or use is in conformance with the provisions of the Uniform Construction Code[3] and other codes and ordinances affecting construction and occupancy.
(c)
A temporary certificate of occupancy may be issued pursuant to the provisions of this chapter for any structure or use for which site plan approval has been secured, but not all conditions of approval have been complied with.
(3)
Existing uses at the time of passage of this chapter or any amendments thereto. The prospective purchaser, prospective mortgagee, or any other person interested in any land or structure may apply in writing for the issuance of a certificate certifying that the use or structure legally existed before the adoption of the chapter or the amendment and certifying the extent and kind of use. The applicant shall have the burden of proof. Application pursuant hereto shall be made to the Borough Administrator within one year of the adoption of the chapter or the amendment or at any time to the Planning Board and shall be accompanied by the established fee. A denial by the Borough Administrator shall be appealable to the Planning Board pursuant to N.J.S.A. 40:55D-72 et seq.
(4)
Change of occupancy. Whenever there occurs a change in the occupancy or use of any building, structure or land, a new certificate of occupancy shall be applied for, to ensure compliance with all applicable codes and ordinances. The Zoning Officer may issue such certificate if the Administrative Officer determines such change in occupancy is not a change in use as defined in § 150-6 of this chapter and that the applicant has met the requirements of the applicable regulations.
(5)
Scope of certificate of occupancy. The certificate of occupancy shall contain sufficient information as to the extent and kind of use or uses, such that any future investigation of the premises would disclose the extent to which a use was altered. It shall also indicate whether such use is a permitted or nonconforming use and the extent to which the use does not conform to the provisions of this chapter.
(6)
Improvement required. No permanent certificate of occupancy shall be issued until all required improvements have been installed in accordance with the provisions of this chapter. A temporary certificate of occupancy may be issued to permit occupancy for a period not to exceed 180 days. If at the end of that period the required improvements have not been completed, the occupancy permit becomes null and void and the owner may be subject to the penalties herein defined by this chapter.
E.
Soil erosion and sediment control plan. Where required, a soil erosion and sediment control plan certification shall be obtained from the Freehold Area Soil Conservation District prior to subdivision or the erection of any structure or the alteration of the existing grade on any lot. No such certification shall be valid until a development permit shall have first been issued for the subdivision, building, structure or use.
§ 150-11 Records.
A.
It shall be the duty of the Administrative Officer (Planning Board and Zoning Officer) or his designee to keep a record of all applications, all actions of the municipal agencies, all complaints, all violations noted and a record or any action taken thereon and all development permits issued together with a notation of all special conditions involved. He shall file and safely keep all copies of all plans submitted, and the same shall form a part of the records of his office and shall be available for the use of the Borough Council and of other officials of the Borough.
B.
The Administrative Officer (Zoning Officer) or his designee shall prepare a monthly report for the Borough Council, summarizing for a period since his last previous report all development permits issued and all complaints of violations and the action taken by him consequent thereon. A copy of each such report shall be filed with the Borough Administrator, Tax Assessor, Planning Board, Code Enforcement Officer, Construction Official and Engineer at the same time it is filed with the Borough Council.
§ 150-12 Enforcement.
The duty of administering and enforcing the provisions of this chapter is hereby conferred upon the Zoning Officer, who shall have such powers as are conferred by this chapter, and as reasonable may be implied. In no case shall a development permit be granted for a subdivision or the construction of or alteration of any building or site where the proposed construction, alteration or use thereof would be in violation of any provisions of this chapter. It shall be the duty of the Administrative Officer or his designee to cause any building, plans or premises to be inspected or examined and to order in writing the remedying of any conditions found to exist in violation of this chapter, and the Officer shall have the right to enter any buildings or premises during the daytime, or other normal business hours of the premises, in the course of performing these duties.
§ 150-13 Interpretation.
In the application and interpretation of these regulations, all provisions hereof shall be held to be minimum standards or requirements adopted for the promotion of the public health, safety, convenience, and general welfare of the Borough. Whenever the requirements of these regulations are at variance with the requirements of any other lawfully adopted rules, regulations or ordinances, the most restrictive of those imposing the higher standard shall govern.
§ 150-14 Conflict with other laws; repealer.
Chapter 146, Zoning, Chapter 120, Subdivision of Land, and Chapter 69, Land Use Procedures, from the Code of the Borough of Atlantic Highlands, are hereby repealed in their entirety and any portions of other ordinances which contain provisions inconsistent with these regulations are hereby repealed to the extent of such inconsistency, except as provided, and, except that any building permit, variance, conditional use permit, occupancy permit or other permit validly issued pursuant to any such ordinance shall remain valid and effective and shall continue to be governed by the terms and conditions of such ordinance.
§ 150-15 Violations and penalties.
A.
For a violation of any provision of these regulations, unless a specific penalty is otherwise provided in connection with the regulation violated, the maximum penalty upon conviction of the violation shall be as provided in Chapter 1, Article II, General Penalty. Each day a violation occurs shall constitute a separate offense.
[Amended 6-24-1998 by Ord. No. 14-98][1]
B.
Violations enumerated.
(1)
It shall be a violation of the provisions of these regulations to:
(d)
After approval of a development permit, fail to follow, during construction, the approved site or subdivision plans and/or observe any and all conditions of approval contained in any resolution of the Planning Board.
(f)
Fail to observe any direction of the Administrative Officer or his designee with regard to the suspension of any work not in conformance with approved plans or the conditions of any resolution of the Planning Board or of the development permit.
(g)
Fail to observe any direction of the Administrative Officer or his designee with regard to the correction, including any time limits imposed for such correction, of any work not in conformance with the approved plans or the conditions of any resolution of the Planning Board or of the development permit.
(h)
After completion of a development, fail to operate and maintain the site in conformance with the approved plans, any condition of a resolution of the Planning Board or of the development permit and/or any of the provisions or applicable design standards set forth in Articles VII, VIII, and IX of these regulations.
(2)
The above shall not be construed to be an exhaustive list of those activities or actions or omissions which constitute violations of these regulations. Engaging in other activities prohibited by, or failure to engage in other activities required by, these regulations shall also be considered violations.
C.
Sale or transfer land in subdivision prior to approval.
(1)
If, before final subdivision approval has been granted, any person transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval, as owner or agent, any land which forms a part of a subdivision for which municipal approval is required by this chapter pursuant to N.J.S.A. 40:55D-1 et seq., such person shall be subject to a penalty not to exceed $1,000 and each lot so made may be deemed a separate violation.
(2)
In addition to the foregoing, the municipality may institute and maintain a civil action:
(3)
In any such action, the transferee, purchaser or grantee shall be entitled to a lien upon the portion of the land from which the subdivision was made that remains in the possession of the developer or his assigns or successors, to secure the return of any deposits made or purchase price paid, and also, a reasonable search fee, survey expense and title closing expense, if any. Any such action must be brought within two years after the date of the recording of the instrument of transfer, sale or conveyance of said land or within six years, if unrecorded.
D.
If, after final approval, it is discovered that there was any misrepresentation of any statements or proofs contained in any plat or in any application for approval or in any representations made to induce approval, the Planning Board or the Borough Council may, in addition to such other sanctions as are available in the law, revoke the approval of any plat and proceed as if final approval had not been obtained.
E.
If the developer or agent of the developer shall, after notification by certified mail from the Zoning Officer or Borough Engineer to cease the construction of improvements, cease the use of certain construction methods and procedures, or cease the use of or lack of use of site maintenance methods and procedures which may result in hazards to life, health or property; continue to carry on the activities specifically included in cessation order(s) from the Zoning Officer or Borough Engineer; then any such developer or agent of such developer shall be subject to a penalty as provided in Chapter 1, Article II, General Penalty. Each and every day that a developer or agent of a developer operates in violation of this chapter after issuance of a cessation order shall be considered a separate and specific violation.[2]
§ 150-16 Amendments.
All amendments to this chapter and to the Zoning Map,[1] which forms a part hereof, shall be adopted in accordance with the provisions of N.J.S.A. 40:55D-1 et seq., as amended and supplemented. The map and schedule of area, yard and building requirements may be amended and supplemented by description and reference thereto, without republication of the entire map or detailed text of the schedule.
A.
Protest of amendments. A protest against any proposed amendment or revision of a zoning ordinance may be filed with the Municipal Clerk, signed by the owners of 20% or more of the area either: 1) of the lots or land included in such proposed change; or 2) of the lots or land extending 200 feet in all directions therefrom inclusive of street space, whether within or without the Borough. Such amendment or revision shall not become effective following the filing of such protest except by the favorable vote of 2/3 of all members of the governing body of the Borough.
[1]
Editor's Note: The Zoning Map is on file in the Borough offices.
§ 150-17 Effect on pending and new applications.
A.
Effect on new applications. After the effective date of this chapter, all new applications, and any pending applications which have not been approved, shall be subject to all the provisions of this chapter, except as provided by § 150-17B.
B.
Effect on pending applications.
(1)
If the provisions of this chapter cause there to be a change in the classification of a pending application or require additional variances or result in greater deviations from the standards for a pending variance application, the pending application shall be denied without prejudice. The applicant may submit a new application, subject to all the provisions of this chapter.
(2)
If the provisions of this chapter require additional design exceptions or waivers or create greater deviations from standards for a pending design waiver or exception application, the pending application shall be denied without prejudice and the Administrative Officer shall so notify the applicant. However, the pending application may be continued, provided: i) the applicant submits within 30 days of the effective date of this chapter an amended application including a statement justifying the waivers or exceptions; and ii) the Board shall be required to act within 60 days of the effective date of this chapter or within the time limits originally applicable to the pending application, whichever is later.
(3)
If the provisions of this chapter do not cause there to be a change in the classification of a pending application or require additional variances or result in greater deviations from the standards for a pending variance application or require additional design exceptions or waivers or create greater deviations from standards for a pending design waiver or exception application, the pending application may be continued subject to the provisions of the regulations in effect prior to the adoption of this chapter and to the time limits originally applicable to the pending application.
C.
All approvals granted after the effective date of this chapter shall confer upon the applicant all the rights set forth in this chapter.
§ 150-18 Copy to be filed with County Planning Board.
Upon adoption of this chapter, and any amendments, the Municipal Clerk shall file a copy with the Monmouth County Planning Board as required by N.J.S.A. 40:55D-16. Any zoning ordinance or amendment or revision which in whole or in part is inconsistent with or not designed to effectuate the Land Use Plan Element and Housing Plan Element of the Master Plan shall not take effect until a copy of the resolution required by N.J.S.A. 40:55D-62 shall be filed with the Monmouth County Planning Board.
§ 150-19 Escrow deposits and application fees.
A.
The Planning Board shall require, in addition to the normal application fees, escrow deposits in accordance with the provisions of this chapter. Such escrows shall be utilized to pay the costs of any professional fees, including engineering, legal, planning and other expenses incurred for review of and/or testimony requested by a Board concerning an application for development submitted by an applicant.
B.
The amount of escrow deposit shall be reasonable in regard to the scale and complexity of the development. All payments charged to the deposit shall be pursuant to vouchers from the professionals stating the hours spent, the hourly rate and the expenses incurred. The Borough shall render a final written accounting to the developer on the uses to which the deposit was put. Thereafter the Borough shall, upon written request, provide copies of the vouchers to the developer. If salary, staff support and overhead for a professional are provided by the Borough, the charge to the deposit shall not exceed 200% of the sum of the products resulting from multiplying the hourly base salary of each of the professionals by the number of hours spent by the respective professional on review of the application for development or the developer's improvements, as the case may be. For other professionals the charge to deposit shall be at the same rate as all other work of the same nature by the professional for the Borough.
C.
Subject to the provisions of Subsection E(6) hereinbelow, each applicant shall, prior to the application being ruled complete pursuant to the provisions of the Municipal Land Use Law,[1] submit the following sum(s) as application fees and the following sum(s) to be held in escrow in accordance with the provisions hereof.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
D.
Every application for development shall be accompanied by a check payable to Borough of Atlantic Highlands in accordance with the following schedules.
E.
The application fee is a flat fee to cover direct administrative expenses and is nonrefundable. Where one application for development includes several approval requests, the sum of the individual required fees shall be paid. Application fees for concept plans may be credited against any future formal applications submitted by the same developer for the same tract. If final total square footage is unknown, fees and escrows shall be based upon maximum floor area permitted under the Schedule of Zoning Requirements, Exhibit 5-2.[2] For site plans involving expansion, addition and modifications of existing buildings, per acre fee and escrow shall be waived and only the per square foot fee shall be charged. Fees for application for development permit, subdivisions, site plans and other submissions shall be as provided in Chapter 168, Article II.
[Amended 4-9-2003 by Ord. No. 2-2003; 2-23-2011 by Ord. No. 03-2011]
(1)
Written agreement. Each applicant for subdivision or site plan approval shall agree in writing to pay all reasonable costs for professional review of the application, including costs incurred with any informal review of a concept plan which may have preceded the submission of a preliminary application and any costs incurred as a result of special meetings required by the application as set forth in Subsection E(5).
(2)
Transcript of hearings. If an applicant desires a court reporter, the cost of 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.
(3)
Fee for inspection of constructed improvements.
[Amended 7-25-2018 by Ord. No. 09-2018]
(a)
Each applicant shall agree in writing to pay all reasonable costs for municipal inspection of the constructed improvements. The applicant shall post inspection fees in escrow with the municipality in the following amount(s):
[2]
Five percent of the cost of "private site improvements" that are not covered under Subsection E(3)(a)[1] of this section, which cost shall be determined in accordance with N.J.S.A. 40:55D-53.4.
(b)
For those developments for which the inspection fees total less than $10,000, the fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees.
(c)
For those developments for which the inspection fees total $10,000 or greater, the fees may, at the option of the developer, be paid in four installments. The initial amount deposited in escrow by a developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspections, the developer shall make additional deposits of 25% of the inspection fees.
(d)
If the municipality determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsection E(3)(a)[1] and [2] herein, is insufficient to cover the cost of additional required inspections, the developer shall deposit additional funds in escrow as may be required by the municipality, provided that the municipality delivers the developer a written inspection escrow deposit request signed by the Municipal Engineer, which:
(e)
In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38a, the provisions of this section shall be applied by stage or section.
(f)
The Municipal Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit, nor shall the developer proceed with any work for which an inspection is required until sufficient funds are on deposit. All such costs for inspections must be paid before any construction permit is issued, and all remaining costs must be paid in full before any occupancy of the premises is permitted or the certificate of occupancy is issued.
(g)
The cost of the installation of improvements shall be estimated by the Municipal Engineer based on documented construction costs for public improvements prevailing in the general area of the municipality pursuant to N.J.S.A. 40:55D-53.4.
(h)
The Municipal Chief Financial Officer shall deposit all fees for the inspection of constructed improvements in excess of $5,000 in accordance with N.J.S.A. 40:55D-53.1. The inspection fee, until repaid or applied to the purposes for which it is deposited, including the applicant's portion of the interest earned thereon, except as otherwise provided in this section, shall continue to be the property of the applicant and shall be held in trust by the municipality. Money deposited shall be held in escrow. The municipality shall deposit the money in a banking institution or savings and loan association in this state insured by an agency of the federal government, or in any other fund or depository approved for such deposits by the state, in an account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. The municipality shall notify the applicant in writing of the name and address of the institution or depository in which the deposit is made and the amount of the deposit. The municipality shall not be required to refund an amount of interest paid on a deposit which does not exceed $100 for the year. If the amount of interest exceeds $100, that entire amount shall belong to the applicant and shall be refunded to him annually or at the time the deposit is repaid or applied to the purposes for which it was deposited, as the case may be; except that the municipality may retain for administrative expenses a sum equivalent to 33 1/3% of that entire amount, which shall be in lieu of all other administrative and custodial expenses.
(4)
Costs for special meetings. The applicant shall reimburse the Borough for all costs incurred as a result of any special meeting, including but not limited to attorneys' fees, engineering fees, transcriber fees, planning consultant fees and any other expert fees.
(5)
Escrow deposits.
(a)
Within 45 days after the filing of an application for development, the Planning Board or its designee shall review said application for development to determine whether the escrow amounts set forth above are adequate. In conducting such review, the following criteria shall be considered:
[1]
The presence or absence of public water and/or sewer servicing the site.
[2]
Environmental considerations, including but not limited to geological, hydrological and ecological factors.
[3]
Traffic impact of the proposed development.
[4]
Impact of the proposed development on existing aquifer and/or water quality.
[5]
Impact on improvement which might require off-tract or off-site contributions agreements.
(b)
If additional sums are deemed necessary, the applicant shall be notified in writing by the Planning Board or its designee of the required additional amount and shall add such sum to the escrow within 10 days of receipt of such notice for additional sums.
(c)
No application for development shall be deemed complete until such time as the applicant shall have posted with the Borough Treasurer, in cash, certified check or money order, the amount of escrow deposit determined by the Application Review Committee to be required in accordance with the provisions of this chapter. No application shall be deemed complete until the applicant shall complete all forms as required by the Administrative Officer. If additional sums are deemed necessary for the escrow and the applicant fails to pay such sums within 10 days of receipt of written notice required by Subsection E(6), the application will be declared incomplete regardless of the status of the application and any hearings.
(d)
All escrow charges which are due and owing shall become a lien on 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.
(e)
All such escrow funds shall be utilized by the appropriate Board to pay the costs of any professional fees incurred by the Board for review and/or testimony in connection with the particular application for development. All sums not actually so expended shall be refunded to the applicant within 60 days after the resolution of memorialization has been accepted by the appropriate board with respect to such application upon certification to the Borough by the Planning Board that the application has been finally determined. The refunding process will be in accordance with the guidelines and procedures established by the Division of Local Government Services in effect at that time. In no event, however, shall the application fees required pursuant to § 168-2G(1) through (4) be refunded.
(f)
The Borough Treasurer shall deposit all escrow funds in accordance with N.J.S.A. 40:55D-53.1 and 40A:4-39.
(6)
Reproduction fees. Costs for reproduction of plats, attachments, maps or other supporting documentation shall be paid in full by the requestor prior to release in accordance with current Borough requirements.
(7)
Tax Map revision fees. A fee as provided in Chapter 168, Article II, per lot or unit shall be charged for all minor and major subdivisions, residential unit site plans or condominium or cooperative residential or commercial development to cover the cost of revising the Borough Tax Map. This fee shall be paid prior to signing of the final plat of a major subdivision by the Chairman and the Secretary of the Planning Board and Borough Engineer/Surveyor.
(11)
Site plan charges computation for partial site; developments. In cases where only a portion of a parcel of site are to be involved in the proposed site plan, a site area charge may be charged based upon an area extending 20 feet outside the limits of all construction including grading and landscaping as well as all other areas of site the Borough Engineer believes are reasonably affected by the development application. The 20 feet around disturbed areas shall not extend beyond the property lines. The Borough may still require reasonable improvements and upgrading to portions of the site not within the disturbed or affected areas.
(12)
Supervision.
(a)
No contractor, builder, developer or subcontractor shall engage any personnel in any of the work on constructing any improvements unless they are continually supervised by a competent, English-speaking supervisor acceptable to the Borough Engineer.
(b)
No less than five days prior to commencing construction of any improvements on the site, the developer or his agent shall provide the Borough Engineer with the names, addresses, phone numbers and emergency phone numbers of the subdivider and/or a representative empowered to act for the developer and/or each contractor and their supervisor in charge of the construction, setting forth the aspects of construction for which each is responsible.
[2]
Editor's Note: Exhibit 5-2 is included as an attachment to this chapter.
F.
Fees in lieu of parking. A parking fund is hereby established for the construction, acquisition, development, expansion or capital repair of public and municipal parking facilities, to provide funds for the construction of a municipal garage and for the payment of other traffic- or transportation-related capital projects or operating expenses of transit facilities designed to reduce reliance on private automobiles, programs to facilitate carpooling or ride-sharing and creation of a safe streetscape for all user groups utilizing all modes of transportation by introducing context-sensitive design elements at intersections and corridors, such as wayfinding signage, crosswalks, and user connections to public and municipal parking facilities.
[Added 9-26-2018 by Ord. No. 18-2018]
(1)
If the off-street parking requirements of an application for development are not met as required by the land use regulations of the Borough of Atlantic Highlands or pursuant to any state standard, such as the Residential Site Improvements Standards, the developer must:
(a)
Apply for approval of a parking space variance, subject to the provisions of the applicable land use regulation and, in the event the variance is granted;
(2)
The developer of a new, reconstructed/redeveloped project within the HB, HBD, CBD, WB and LI Districts, which application proposes development with a deficiency in the required number of off-street parking spaces, shall contribute to the parking fund a fee of $25,000 for each deficient parking space for all new or restored residential units in the Historic and Central Business Districts, and same shall apply when the ground floor area ratio of an existing structure is increased.
[Amended 11-28-2018 by Ord. No. 20-2018; 10-23-2019 by Ord. No. 15-2019]
(3)
The provisions of this subsection shall be severable. In the event that any portion of this subsection is found to be invalid for any reason by any court of competent jurisdiction, such judgment shall be limited in its effect only to the portion of the subsection actually adjudged invalid and shall not be deemed to effect the operation of any other portions thereof, which shall remain in full force and effect.
G.
Hiring and payment of expert witnesses; escrow deposit required. The Planning Board shall require, in addition to the application filing fees, escrow deposits which shall be utilized in accordance with the provisions of this section. Such escrow shall be utilized by the Board to pay the cost of any professional fees incurred for review of and/or testimony concerning an application for development submitted by an applicant. The cost of such experts retained by the Planning Board shall be borne by the applicant as set forth in § 150-19A and B herein.
[Added 11-18-2019 by Ord. No. 16-2019]
(1)
The funds deposited shall be sufficient to reimburse the Borough for all reasonable costs of consultant and expert evaluation and consultation which shall be utilized by the Planning Board in connection with the review of any application. Professional services contemplated shall include any professional or consultant hired or engaged by the Planning Board to aid and assist it in reviewing, evaluating and acting upon development applications, including the hiring of experts for reports and testimony, if deemed appropriate and necessary as determined by the Planning Board Engineer upon his review of the application. This may include review by outside consultants when an application is of a nature beyond the scope of expertise of the professionals normally utilized by the municipality.
(a)
Such escrow shall be utilized to reimburse the Borough for all expenses of technical and professional personnel incurred by it necessary to process an application for development before the Planning Board, such as, but not by way of limitation:
[1]
Charges for review by professional personnel of applications and accompanying documents.
[2]
Issuance of reports by professional personnel to the Planning Board setting forth recommendations resulting from the review of any documents submitted by the applicant.
[3]
Charges for a traffic expert whose analysis shall at minimum include, but not be limited to, the study of two weekdays, one weekend and at least four one-hour recording periods per day, two of which must occur during peak hours, in the location of the development.
[4]
Charges for any telephone conference or meeting requested or initiated by the applicant, his attorney or any of his experts.
[5]
Review of additional documents submitted by the applicant and issuance of reports relating thereto.
[6]
Review or preparation of easements, developer's agreements, deeds, resolutions or the like.
[7]
Preparation for and attendance at special meetings.
[8]
The cost of independent expert advice or testimony obtained by the Planning Board.
(b)
The term "technical and professional personnel" or "professional services," as used herein, shall include the services of a duly licensed engineer, surveyor, planner, Planning Board, Municipal or other attorney, realtor, appraiser, environmentalist, traffic or other experts, and their employees or staff, who would provide technical and professional services to ensure an application meets performance standards set forth in this chapter and generally accepted standards for the particular professional field. "Professional personnel" or "professional services" shall also mean experts whose testimony is in an area in which the applicant has presented expert testimony.
(2)
The Borough shall require the deposit of such escrows into an escrow account for the purpose of reimbursing the municipality for payment of such expenses. The applicant shall, as a condition precedent to the application being deemed complete, submit escrow deposits herein set forth to be held in escrow in accordance with the provisions hereof.
(3)
In the event that the professional and/or expert charges should deplete the escrow account by more than 50% of the original submission, the Chief Financial Officer shall notify the applicant and require payment of additional escrow sums. Such additional escrow sums shall be sufficient to restore the escrow account to not less than 75% of the original escrow deposit.
(4)
No application for development shall be deemed complete until such time as the applicant shall have posted with the Borough, in cash, certified check or money order, the amount of escrow deposit maintained by the Planning Board to be required in accordance with the provisions of this chapter.
§ 150-20 Affordable housing development fees.
[Added 4-11-2007 by Ord. No. 04-2007; amended 2-11-2009 by Ord. No. 02-2009; 5-22-2019 by Ord. No. 07-2019]
A.
Findings and purpose.
(1)
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, N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the adoption of rules by the Council on Affordable Housing (COAH).
(2)
Pursuant to P.L. 2008, c. 46, § 8 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), COAH was authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that were under the jurisdiction of COAH, and that are now before a court of competent jurisdiction and have a Court-approved spending plan, may retain and expend fees collected from both residential and nonresidential development.
(3)
This section establishes standards for the collection, maintenance, and expenditure of development fees that are consistent with COAH's regulations developed in response to P.L. 2008, c. 46, §§ 8 and 32-38 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing in accordance with a Court-approved spending plan.
C. AFFORDABLE HOUSING DEVELOPMENT COAH or THE COUNCIL DEVELOPER DEVELOPMENT FEE EQUALIZED ASSESSED VALUE GREEN BUILDING STRATEGIES
Definitions. The following terms, as used in this section, shall have the following meanings:
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100% affordable housing development.
The New Jersey Council on Affordable Housing established under the Fair Housing Act.
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.
Money paid by a developer for the improvement of property as permitted by applicable COAH regulations.
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 §§ 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).
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.
D.
Residential development fees.
(1)
Imposition of fees.
(a)
Within the Borough of Atlantic Highlands, all residential developers, except for developers of the types of developments specifically exempted below and developers of developments that include affordable housing, shall pay a fee of 1.5% of the equalized assessed value for all new residential development, provided no increased density is permitted. Development fees shall also be imposed and collected when an additional dwelling unit is added to an existing residential structure; in such cases, the fee shall be calculated based on the increase in the equalized assessed value of the property due to the additional dwelling unit.
(b)
When an increase in residential density is permitted pursuant to a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers shall be required to pay a bonus development fee of 6% of the equalized assessed value for each additional unit that may be realized, except that this provision shall not be applicable to a development that will include affordable housing. 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.
(2)
Eligible Exactions, Ineligible Exactions and Exemptions for Residential Developments.
(a)
Affordable housing developments, developments where the developer is providing for the construction of affordable units elsewhere in the municipality, and/or developments where the developer has made a payment in lieu of on-site construction of affordable units, if permitted by ordinance or by agreement with the Borough of Atlantic Highlands, shall be exempt from the payment of development fees.
(b)
Developments that have received preliminary or final site plan approval prior to the adoption of Atlantic Highlands' first adopted development fee ordinance shall be exempt from the payment of development fees, unless the developer seeks a substantial change in the original approval. Where site plan approval is not applicable, the issuance of a building permit shall be synonymous with preliminary or final site plan approval for the purpose of determining the right to an exemption. In all cases, the applicable fee percentage shall be determined based upon the development fee ordinance in effect on the date that the building permit is issued.
(c)
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.
(d)
Homes demolished and replaced as a result of a natural disaster (such as a fire or flood) shall be exempt from the payment of a development fee.
E.
Nonresidential development fees.
(1)
Imposition of fees.
(a)
Within all zoning districts, nonresidential developers, except for developers of the types of developments specifically exempted below, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.
(b)
Within all zoning districts, nonresidential developers, except for developers of the types of developments specifically exempted below, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.
(c)
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvements and the equalized assessed value of the newly improved structure, i.e., land and improvements, and such calculation shall be made at the time a final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
(2)
Eligible Exactions, Ineligible Exactions and Exemptions for Nonresidential Development.
(a)
The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to a 2.5% development fee, unless otherwise exempted below.
(b)
The 2.5% development fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within the existing footprint, reconstruction, renovations and repairs.
(c)
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption." Any exemption claimed by a developer shall be substantiated by that developer.
(d)
A developer of a nonresidential development exempted from the nonresidential development fee pursuant to the Statewide Nonresidential Development Fee Act shall be subject to the fee at such time as the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy for the nonresidential development, whichever is later.
(e)
If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Borough of Atlantic Highlands as a lien against the real property of the owner.
F.
Collection procedures.
(1)
Upon the granting of a preliminary, final or other applicable approval for a development, the applicable approving authority shall direct its staff to notify the Construction Official responsible for the issuance of a building permit.
(2)
For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption" to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The Construction Official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.
(3)
The Construction Official responsible for the issuance of a building permit shall notify the local Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.
(4)
Within 90 days of receipt of such notification, the Borough Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.
(5)
The Construction Official responsible for the issuance of a final certificate of occupancy shall notify the Borough Tax Assessor of any and all requests for the scheduling of a final inspection on a property which is subject to a development fee.
(6)
Within 10 business days of a request for the scheduling of a final inspection, the Borough Tax Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements associated with the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.
(7)
Should the Borough of Atlantic Highlands 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 § 37 of P.L. 2008, c.46 (N.J.S.A. 40:55D-8.6).
(8)
Fifty percent of the initially calculated development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the time of issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the time of issuance of the building permit and that determined at the time of issuance of the certificate of occupancy.
(9)
Appeal of development fees.
(a)
A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Such a challenge must be made within 45 days from the issuance of the certificate of occupancy. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by the Borough of Atlantic Highlands. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1, et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
(b)
A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by the Borough of Atlantic Highlands. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1, et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
G.
Affordable housing trust fund.
(1)
There is hereby created a separate, interest-bearing Affordable Housing Trust Fund to be maintained by the Chief Financial Officer of the Borough of Atlantic Highlands for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
(2)
The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:
(a)
Payments in lieu of on-site construction of affordable units or of a fraction of an affordable unit, where permitted by ordinance or by agreement with the Borough of Atlantic Highlands;
(b)
Funds contributed by developers to make 10% of the adaptable entrances in a townhouse or other multistory attached dwelling unit development accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Atlantic Highlands' affordable housing program.
(3)
In the event of a failure by the Borough of Atlantic Highlands to comply with trust fund monitoring and reporting requirements or to submit accurate monitoring reports; or a failure to comply with the conditions of the judgment of compliance or a revocation of the judgment of compliance; or a failure to implement the approved spending plan and to expend funds within the applicable required time period as set forth in In re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J. Super. 563); or the expenditure of funds on activities not approved by the Court; or for other good cause demonstrating the unapproved use(s) of funds, the Court may authorize the State of New Jersey, Department of Community Affairs, Division of Local Government Services (LGS), to direct the manner in which the funds in the Affordable Housing Trust Fund shall be expended, provided that all such funds shall, to the extent practicable, be utilized for affordable housing programs within the Borough of Atlantic Highlands, or, if not practicable, then within the county or the housing region.
(a)
Any party may bring a motion before the Superior Court presenting evidence of such condition(s), and the Court may, after considering the evidence and providing the municipality a reasonable opportunity to respond and/or to remedy the noncompliant condition(s), and upon a finding of continuing and deliberate noncompliance, determine to authorize LGS to direct the expenditure of funds in the Trust Fund. The Court may also impose such other remedies as may be reasonable and appropriate to the circumstances.
(4)
Interest accrued in the Affordable Housing Trust Fund shall only be used to fund eligible affordable housing activities approved by the Court.
H.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved by the Court. Funds deposited in the Affordable Housing Trust Fund may be used for any activity approved by the Court to address the Borough of Atlantic Highlands' fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to preservation or purchase of housing for the purpose of maintaining or implementing affordability controls; housing rehabilitation; new construction of affordable housing units and related costs; accessory apartments; a market to affordable program; Regional Housing Partnership programs; conversion of existing nonresidential buildings to create new affordable units; green building strategies designed to be cost saving and in accordance with accepted national or state standards; purchase of land for affordable housing; improvement of land to be used for affordable housing; extensions or improvements of roads and infrastructure to affordable housing sites; financial assistance designed to increase affordability; administration necessary for implementation of the Housing Element and Fair Share Plan; and/or any other activity permitted by the Court and specified in the approved spending plan.
(2)
At least 30% of all development fees collected and interest earned on such fees shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of the median income for Housing Region 4, in which Atlantic Highlands is located.
(a)
Affordability assistance programs may include down payment assistance, security deposit assistance, low interest loans, rental assistance, assistance with homeowners association or condominium fees and special assessments, and assistance with emergency repairs. The specific programs to be used for affordability assistance shall be identified and described within the spending plan.
(b)
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low or moderate income units in the municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The specific programs to be used for very low income affordability assistance shall be identified and described within the spending plan.
(c)
Payments in lieu of constructing affordable housing units on site, if permitted by ordinance or by agreement with the Borough of Atlantic Highlands, and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
(3)
The Borough of Atlantic Highlands may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including its programs for affordability assistance.
(4)
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 consultants' fees necessary to develop or implement a new construction program, prepare a Housing Element and Fair Share Plan, and/or administer an affirmative marketing program or a rehabilitation program.
(a)
In the case of a rehabilitation program, the administrative costs of the rehabilitation program shall be included as part of the 20% of collected development fees that may be expended on administration.
(b)
Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or related to securing or appealing a judgment from the Court are not eligible uses of the Affordable Housing Trust Fund.
I.
Monitoring. The Borough of Atlantic Highlands shall provide annual reporting of Affordable Housing Trust Fund activity to the State of New Jersey, Department of Community Affairs, Council on Affordable Housing or Local Government Services or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center and posted on the municipal website, using forms developed for this purpose by the New Jersey Department of Community Affairs, Council on Affordable Housing or Local Government Services. The reporting shall include an accounting of all Affordable Housing Trust Fund activity, including the sources and amounts of funds collected and the amounts and purposes for which any funds have been expended. Such reporting shall include an accounting of development fees collected from residential and nonresidential developers, payments in lieu of constructing affordable units on site (if permitted by ordinance or by agreement with the Borough), funds from the sale of units with extinguished controls, barrier free escrow funds, rental income from Borough owned affordable housing units, repayments from affordable housing program loans, and any other funds collected in connection with Atlantic Highlands' affordable housing programs, as well as an accounting of the expenditures of revenues and implementation of the spending plan approved by the Court.
J.
Ongoing collection of fees.
(1)
The ability for the Borough of Atlantic Highlands to impose, collect and expend development fees shall expire with the expiration of the repose period covered by its judgment of compliance unless the Borough of Atlantic Highlands has first filed an adopted Housing Element and Fair Share Plan with the Court or with a designated state administrative agency, has petitioned for a judgment of compliance from the Court or for substantive certification or its equivalent from a state administrative agency authorized to approve and administer municipal affordable housing compliance and has received approval of its development fee ordinance from the entity that will be reviewing and approving the Housing Element and Fair Share Plan.
(2)
If the Borough of Atlantic Highlands fails to renew its ability to impose and collect development fees prior to the expiration of its judgment of compliance, it may be subject to forfeiture of any or all funds remaining within its Affordable Housing Trust Fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to § 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320).
(3)
The Borough of Atlantic Highlands shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its judgment of compliance, nor shall the Borough of Atlantic Highlands retroactively impose a development fee on such a development. The Borough of Atlantic Highlands also shall not expend any of its collected development fees after the expiration of its judgment of compliance.