Berlin City Zoning Code
ARTICLE III
General Provisions
§ 335-3 Interpretation; conflict with other Pinelands provisions.
These rules and regulations shall be the minimum requirements for the protection of the public health, safety and welfare. The standards and regulations applicable to the Pinelands Area are intended to be the minimum provisions necessary to achieve the objectives of this chapter and the Pinelands Protection Act. If this chapter conflicts with any Pinelands regulations or if there are conflicts between any separate provisions of this chapter, the most restrictive shall apply.
§ 335-4 Amendments.
This chapter may be amended, changed, modified or repealed, in whole or in part, in accordance with applicable laws.
§ 335-5 Appeals to governing body.
Any interested party may appeal to the governing body any final decision approving a use variance 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. The appeal shall comply with the provisions of the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) and shall be made by serving the Borough Clerk in person, or by certified mail, with a notice of appeal specifying the grounds thereof and the name and address of the appellant and name and address of his attorney, if represented. The material submitted in support of the appeal, notice, time within which the governing body must act and similar matters shall be consistent with the Municipal Land Use Law and any rules adopted by the governing body. The appeal shall be decided by the governing body only upon the record established before the approving authority. The governing body may reverse, remand or affirm, in whole or in part, or may modify the final decision of the approving authority. An appeal to the governing body shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Board from whose action the appeal is taken, certifies to the governing body, after the notice of appeal shall have been filed with the Board, that by reasons of facts stated in the certificate a stay would, in its opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court on application upon notice to the Board from whom the appeal is taken and on good cause shown.
§ 335-6 Application for preliminary or final plat approval; checklist.
The submission of an application for either preliminary or final plat approval shall be accompanied by a completed application form and a completed checklist as have been adopted as part of this chapter and attached hereto.[1]
[1]
Editor's Note: Said application form and checklist are on file in the Borough offices.
§ 335-7 Compliance required.
All requirements of this chapter shall be met at the time of any construction, enlargement, moving or change in use. All developments resulting from subdivision and site plan approvals shall comply with all the provisions of approval, including conditions imposed by the approving authority, all as shown on the approved plat and/or included in the resolution adopted by the approving authority.
§ 335-8 Conditional uses.
[Amended 9-15-1997 by Ord. No. 97-16]
Before issuing any permit for a conditional use, the approving authority shall have approved the application after public hearing, but within 95 days of submission of a complete application to the administrative officer, or within such further time as may be consented to by the applicant. Failure of the approving authority to act within the required time period shall constitute approval of the application. Notice of the hearing for a conditional use shall comply with § 335-17, Public hearings and notices. In reviewing a conditional use application, the approving authority shall review the conditions set forth in this chapter and related site plan and land use issues. A conditional use shall be deemed to be a permitted use in the zoning district in which it is located. Each conditional use shall be considered as an individual case. Conditional uses shall require site plan review and approval. Whenever an application for approval of a conditional use includes a request for relief pursuant to N.J.S.A. 40:55D-60, the approving authority shall grant or deny approval of the application within 120 days after submission of a complete application or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, this one-hundred-twenty-day period shall apply only to the application for the approval of the variance or the direction for issuance of a permit as set forth in N.J.S.A. 40:55D-60. The period for granting or denying the other approval(s) shall be as set forth for the other approvals.
§ 335-9 Conflicting provisions.
These provisions shall be minimum requirements. Where both minimum and maximum standards are established, both shall be met even though the combination may not permit development to take advantage of all standards simultaneously. Where there are conflicting provisions with other provisions of this chapter or any other ordinance or law, the more restrictive or higher standards shall control.
§ 335-10 When effective.
This chapter shall take effect upon its final passage and upon publication and filing with the County Planning Board according to law.
§ 335-11 Enforcing officers.
A.
It shall be the duty of the Zoning Officer to administer and enforce the zoning provisions of this chapter.
B.
It shall be the duty of the Borough Engineer to enforce the provisions of subdivision and site plan approvals.
C.
The Zoning Officer shall have the right to enter any building or premises during the daytime in the course of enforcing this chapter.
§ 335-11.1 Violations and penalties.
[Added 3-20-2006 by Ord. No. 2006-4]
A.
Any person who violates any section of Chapter 335 of the Code of the Borough of Berlin shall be subject to a fine of not more than $2,000, imprisonment for not more than 90 days and/or a period of community service not to exceed 90 days. Each day on which a violation occurs shall be considered a separate offense.
B.
A fine in an amount greater than $1,250 upon an owner or other person for violating any provision of Chapter 335 of the Code of the Borough of Berlin shall not be imposed until the owner or other person is provided a thirty-day period in which the owner or other person shall be afforded the opportunity to cure or abate the condition and shall also be afforded an opportunity for a hearing before a court of competent jurisdiction for an independent determination concerning the violation. Subsequent to the expiration of the thirty-day period, a fine greater than $1,250 may be imposed if a court has not determined otherwise or, upon reinspection of the property, it is determined that the abatement has not been substantially completed.
§ 335-12 Existing rights and liabilities; construction in process; pending applications.
A.
These regulations shall not abate any action now pending under prior existing subdivision, site plan or zoning regulations; or abate or modify any penalty accruing or about to accrue; or affect the liability of any person, firm or corporation; or waive any right of the Borough under any provision existing at the time of adoption of this chapter; or vacate or annul any rights obtained by any person, firm or corporation by lawful action of the Borough except as shall be expressly provided for in this chapter.
B.
Nothing in this chapter shall require any change in a construction permit, site plan or zoning variance which was approved before the enactment of this chapter but is in violation thereof, provided that construction based on such a construction permit shall have been started within one year from the effective date of this chapter and, in the case of a site plan or variance, a construction permit shall have been issued within one year following the effective date of this chapter. In all instances, the project shall be pursued to completion; otherwise, said approvals and permit shall be void except as otherwise may be protected by N.J.S.A. 40:55D-49 or 40:55D-52.
§ 335-13 Fees and escrow deposits.
[Amended 6-20-2005 by Ord. No. 2005-14; 6-18-2007 by Ord. No. 2007-10; 12-27-2012 by Ord. No. 2012-19; 5-9-2024 by Ord. No. 2024-10]
Any applicant to the Planning Board shall pay the amounts set forth below to the Borough of Berlin at the time of application. No application can proceed before the approving authority or receive final action on the application, until all fees are paid and escrow deposits are current:
A.
Affordable housing fee. In addition to the application and escrow fees set forth below, each applicant shall pay an affordable housing fee as required by Chapter 193, Housing, Affordable, of the Borough Code.
B.
Nonrefundable application fees.
(1)
General fees.
(a)
The publication fee for each decision rendered by the Planning Board to defray the cost of publishing said decisions shall be $25 for a minor subdivision and $100 for a major subdivision.
(c)
The fee for each list of names to whom the applicant is required to give notice pursuant to N.J.S.A. 40:55D-12b shall be $10. The list shall include the current tax duplicate, the names and addresses of property owners, and the names, addresses, and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to N.J.S.A. 40:55D-12h. The applicant shall be entitled to rely upon the information contained in such list, and the failure to give notice to any owner or to any public utility, cable television company or local utility not on the list shall not invalidate any hearing or proceeding.
C.
Amount of fees and escrow deposits due.
(1)
Each applicant shall, prior to its application being deemed complete, submit to the Planning Board Secretary, by certified check or money order, the following sums as application fees and escrow deposits, together with a fully executed escrow agreement in the form provided by the Borough:
Application Type | Application Fee | Escrow Fee |
|---|---|---|
Residential | ||
Minor subdivision | $250 | $3,000 |
Major subdivision | $750 | $3,000 (5 acres or less) $6,000 (Greater than 5 acres) |
Amended subdivision | 50% of full fee | 50% of full fee |
Application for subdivision approval extension | $500 | $1,500 |
Nonresidential | ||
Minor subdivision | $750 | $3,000 |
Major subdivision | $1,500 | $3,000 (5 acres or less) $6,000 (Greater than 5 acres) |
Amended subdivision | 50% of full fee | 50% of full fee |
Application for subdivision approval extension | $500 | $1,500 |
Site Plans | ||
Minor site plan | $1,000 | $3,000 (5 acres or less) $6,000 (Greater than 5 acres) |
Major site plan | $1,500 | $3,000 (5 acres or less), $6,000 (Greater than 5 acres) |
Amended site plan | 50% of full fee | 50% of full fee |
Site plan waiver | $250 | $750 |
Subcommittee informal review | $100 | $750 |
Application for site plan approval extension | $500 | $1,500 |
Variance applications | ||
Hardship (N.J.S.A. 40:55D-70c) | $250 (Residential) $750 (Commercial) | $1,500 |
Use of structure (N.J.S.A. 40:55D-70d) | — | — |
Residential (single lot) | $200 | $1,500 |
Residential (more than one lot) | $500 | $1,500 |
Commercial | $500 | $1,500 |
Fire Prevention Review Fee | ||
Minor subdivision | $150 | |
Major subdivision | $300 | |
Minor site plan | $200 | |
Major site plan | $300 | |
Planned Development Review Fee | ||
Planned unit residential and residential cluster | $1,000 | $3,000 (5 acres or less), $6,000 (Greater than 5 acres) |
All other planned development | $2,000 | $3,000 (5 acres or less), $6,000 (Greater than 5 acres) |
NOTE: | |
** | Applications for subdivision, site plan, or site plan waiver that are also requesting a variance as part of the application shall pay the fees for the variance plus the subdivision, site plan, or site plan waiver fees required. |
(2)
Escrow deposits. An escrow deposit shall be posted and maintained in connection with any application for interpretation, for a concept or informal plan, sketch plat, preliminary plat, final plat, conditional use, variance, or related matter, as set forth below.
(3)
Escrow payments shall be for the purpose of reimbursing the Borough for the costs of any professional fees incurred for reviews, inspection charges and actual out-of-pocket expenses associated with applications on behalf of the Borough, including applications for development and variance applications involving the review of applications, review and preparation of documents, inspection of improvements or other purposes under the provisions of the Municipal Land Use Law and for such costs incurred for professional services of outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the Borough. Said reviews shall include, but not be limited to, analysis of all application documents, maps, plans, reports and exhibits, preparation of written reports, meeting attendance, oral testimony, inspections and/or other services rendered in connection with the application under the provisions of the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.). Escrow payments shall be in addition to the nonrefundable application fees required above. All escrow payments shall be placed in an escrow account pursuant to the following schedule. The Borough shall be responsible for all payments to their professionals for services rendered.
(4)
Amount of deposit; refund of interest.
(a)
Each applicant shall make a deposit toward anticipated municipal expenses for professional services. The deposit shall be placed in an escrow account by the Borough Treasurer pursuant to the Municipal Land Use Law (N.J.S.A. 40:55D-53.1). The amount of the deposit shall be reasonable in relation to the scale and complexity of the development in accordance with the following schedule. All payments charged to the escrow account shall be pursuant to vouchers from the professionals identifying the personnel performing the service and for each date the service was performed, the hours spent to one-fourth-hour increments, the hourly rate and the expenses incurred. If the salary, staff support and overhead for a professional are provided by Borough staff, 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 professionals on the review of the application or on the inspection of the applicant's improvements, as the case may be. For other professionals the charge to the deposit shall be at the same rate as all other work of the same nature by the professional for the Borough. The Borough shall open the account, administer the account, close out the account, return unspent funds and resolve any disputes in accordance with the procedures set forth in N.J.S.A. 40:55D-53.1.
(b)
Whenever an amount of money in excess of $5,000 shall be deposited by an applicant with the Borough for professional services employed by the Borough to review applications for development, for Borough inspection fees in accordance with N.J.S.A. 40:55D-53 or to satisfy the guaranty requirements of N.J.S.A. 40:55D-53, the money, 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 N.J.S.A. 40:55D-1 et seq., shall continue to be the property of the applicant and shall be held in trust by the Borough. Money deposited shall be held in escrow. The Borough 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 Borough shall not be required to refund an amount of interest paid on a deposit that does not exceed $100 for the year. If the amount exceeds $100, that entire amount shall belong to the applicant and shall be refunded to him by the Borough 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 Borough may retain for administrative expenses a sum equivalent to no more than 33 1/3% of that entire amount which shall be in lieu of all other administrative and custodial expenses.
(5)
No submission shall be deemed complete and no action to approve or conditionally approve an application shall be taken until such time as the applicant shall have posted with the Borough by cash, certified check or money order the amount of all escrow sums required to be deposited pursuant to this section calculated as shown below.
(6)
If during the processing of the application the funds remaining in the escrow account are depleted below a sum equal to 25% of the original deposit or $500, whichever is greater, the applicant shall deposit additional funds to bring the escrow account equal to the larger of either $500 or 40% of the original deposit before the application shall continue to be processed by the approving authority and prior to action on the application. By mutual agreement, the applicant and the approving authority may agree to another payment schedule where the size and scope of the application may warrant it. The approving authority may dismiss an application in the event that an applicant does not replenish the escrow account or does not post sufficient escrow fees to continue the processing of an application.
(7)
The administrative officer shall review the submission to determine whether the escrow amount complies with the above schedule. In the event that the administrative officer and the applicant agree that the complexity of the plan or the need for additional expertise may be required and that a greater escrow deposit would be more appropriate for the application, a larger dollar amount shall be deposited. In the event that subsequent replenishment of the escrow fund is needed, the percentage deposits set forth above shall be the minimum payment required.
(8)
If additional moneys were expended over the posted escrow amount, the applicant shall pay such moneys within 14 days of notification. Payment of such money shall be a mandatory condition of approval of all action taken by the Borough. No construction permit or certificate of occupancy shall be issued until all such fees are paid. Any required escrow payment that has not been paid within 30 days of notification shall be passed to the Borough Attorney for collection in the form of a lien on the property.
(9)
Refunds for withdrawn applications. In the event an application is withdrawn, the applicant will be responsible for any and all professional fees accrued to date. Any debit or credit will be settled within 30 days of receipt of the written withdrawal notice.
D.
Reduced fee, schedule for charitable organizations. Any charitable, philanthropic, fraternal and religious nonprofit organization holding a tax exempt status under the Federal Internal Revenue Code of 1954 [26 U.S.C. § 501(c) or (d)] may apply, at the time of submission of its application, for a 50% reduction in the fee schedule as set forth in Subsection B above but shall be required to pay the escrow deposits as set forth in Subsection C above.
F.
Development and redevelopment review fees.
(1)
Purpose. With the goal of enhancing planning, redevelopment and economic development activities within the Borough of Berlin and the intent that such activities further the interests of sustaining and promoting growth and development in the Borough, the Borough hereby establishes escrow accounts for fees to defray costs for redevelopment projects.
(2)
Authority. Pursuant to N.J.S.A. 40A:12A-8(f) of the Local Redevelopment and Housing Law, potential redevelopers with the Borough of Berlin ("Borough") shall be required to enter into a redevelopment escrow funding agreement ("funding agreement") to cover the Borough's administrative expenses, evaluations, negotiation and approval of agreements, legal, engineering, planning, and other professional review fees, and other costs associated with the implementation and administration of redevelopment projects (collectively "redevelopment project costs and expenses") with the Borough Council, the Redevelopment Authority, Economic Development Commission, and/or the Planning Board.
(3)
Fees. Prior to submission of an application for development including redevelopment or rehabilitation to Council, the Redevelopment Authority, Economic Development Commission, and/or the Planning Board, fees shall be payable based on the cost of the proposed project.
(4)
Application fee. The application fee for redevelopment/rehabilitation projects: $500.
(5)
Escrow funding agreement and procedures regarding redevelopment matters.
(a)
This redevelopment funding agreement shall be a prerequisite to all redevelopment agreements with the Borough where the cost of the redevelopment project is as described below.
(b)
The funding agreement acknowledges and binds the developer to post an escrow with the Borough to pay the Borough's redevelopment project costs and expenses. This includes, but is not limited to, all legal, engineering, planning, and/or other professional costs associated with the redevelopment. The appropriate Borough Official shall establish an escrow account for the redevelopment project. The escrow deposit will be held by the Borough and disbursed pursuant to a redevelopment funding agreement. The funding agreement shall be initiated, implemented and managed by the Borough Council, the Redevelopment Authority, Economic Development Commission, and/or the Planning Board.
(c)
Escrow amounts for redevelopment matters.
[1]
Potential redevelopers shall be required to make payments to an escrow account to cover the Borough's redevelopment project costs and reasonable expenses, including, but not limited to, professional review and administrative expenses, towards the potential redeveloper's project. The initial deposit requirement and, if necessary, the amount to be replenished shall be based on the cost of the potential redeveloper's project as described below:
Cost of Redevelopment Project | Escrow Deposit |
|---|---|
$0 to $250,000 | $5,000 |
$250,000 to $500,000 | $10,000 |
$500,000 to $1,000,000 | $15,000 |
Over $1,000,000 | $20,000 |
[2]
If, depending on the scope of the project, the balance of the escrow deposit has insufficient funds and/or falls below $2,000, the potential redeveloper may be required to replenish the escrow account within 20 days from an agreement reached between the potential redeveloper and the Borough Council, the Redevelopment Authority, Economic Development Commission, and/or the Planning Board.
(d)
Each applicant who shall submit a plan for site approval shall agree in writing, by execution of an escrow agreement, to pay all reasonable costs for professional review of the plans and application and for inspection of the improvements required by the Planning Board or Zoning Board. All costs shall be paid in full prior to the issuance of any building permits and any additional escrow due and owing shall be paid in full before any occupancy of the premises is permitted or occupancy permit is issued.
(e)
All relevant provisions regarding the collection, deposit and disposition of application and escrow fees as set forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., are hereby incorporated herein by reference fully.
(f)
Escrow for inspection. The escrow deposit for inspection shall be 5% of the cost of improvements or $500, whichever is greater, except for extraordinary circumstances.
(g)
Escrow fees. The escrow fees required at the time of submission are minimums, which must be submitted with the application for development. An application for development shall not be deemed complete until all required fees have been paid.
(h)
Application of escrow fees. Escrow fees shall be applied to professional costs charged to the Borough's professional consultants (planner, engineer, attorney and any other consultant or specialist retained by the Board) for services rendered in the review of the development application. Additional escrow fees shall be required when the original escrow amount is depleted by 50% or more and the application is still in progress. The amount of additional escrow fees required shall be equal to the difference between the remaining escrow moneys and the original escrow fees deposited. The review of any application which is found to be deficient in the required escrow moneys shall cease until such time as the additional escrow fees have been deposited.
(i)
After an application has received final approval and it has been determined that no further reviews will be involved, any remaining escrow moneys shall be refunded to the applicant, upon the applicant's request. Failure of the applicant to request unused funds, for a period of two years, shall render the moneys within the account nonrefundable. The Clerk of the Planning Board and Zoning Board of Adjustment shall notify the Chief Financial Officer, who will transfer the remaining escrow from said account into the general treasury. A detailed account of all moneys expended from the escrow funds shall be available to the applicant upon request.
§ 335-14 Guaranties and inspections.
A.
Approval requirements.
(1)
No final plat shall be approved until all on-tract items required to be bonded have either been installed and approved by the Borough Engineer and accepted by the governing body and a maintenance guaranty has been filed and accepted by the governing body or their installation shall have been provided for by a performance guaranty accepted and approved by the governing body. No maintenance bond or partially completed facility shall be accepted for any item which has further stages of work or which will need to be altered or reworked due to the installation of any other facility. Any improvements installed prior to the final plat application that do not meet required standards shall be added to the performance guaranty. All off-tract improvements shall be bonded.
(2)
As part of final plat review, the following improvements require a performance guaranty:
(a)
On-site and/or on-tract improvements, including streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments, as shown on the final map and required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.), water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping.
(3)
Other improvements which can affect the health, safety and welfare of the community and are included in the final plans shall be included in the performance guaranty.
B.
A performance guaranty estimate of cost of improvements shall be submitted to the approving authority by the Borough Engineer as part of his report on final plat review. The approving authority may request the Borough Engineer to update this estimate as required.
C.
The applicant shall submit the performance guaranty required for final plat approval to the Borough Engineer and Attorney for review and then to the governing body for approval and acceptance by resolution.
(1)
The performance guaranty shall consist of the performance guaranty cost estimate determined by the Borough Engineer in accordance with N.J.S.A. 40:55D-53.4, and a performance bond in which the developer shall be principal and the surety shall be an acceptable surety company licensed to do business in the State of New Jersey, and/or cash or certified check which shall be deposited with the Borough Treasurer. The Treasurer shall issue a receipt for such deposits and shall retain them, to be returned to the developer upon completion of all required work or, in the event of default, to be used by the Borough to complete the requirements. If the improvements have not been completed in accordance with the standards or within the stipulated time, but no longer than two years, the obligor and surety for any bond shall be liable thereon for the reasonable cost of completing the improvements. Upon authorization by the governing body, the Borough Attorney shall take the necessary steps to obtain such costs from the obligor and surety. The Borough may, either prior to or after receipt of the proceeds thereof, complete such improvements. If the Borough engages a third-party contractor to complete or correct such improvements, said engagement shall be subject to the public bidding requirements of the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.
(2)
The total performance guaranty shall equal 120% of the performance guaranty cost estimate, plus an amount equal to 15% of the cost of any facilities installed prior to final plat submission as a maintenance guaranty. Ninety percent of this total shall be either certified check, bank money order or surety bond of a bonding company approved by and at the option of the governing body. The remaining 10% shall be in cash, and shall be paid in a like manner and under the same conditions as the security aforesaid. In the event of default, the ten-percent-cash fund shall be first applied to complete the requirements, and the cash, certified check or surety bond shall thereafter be resorted to, if necessary. The cash or surety bond may recite the foregoing provision. The Borough Engineer's certification that the principal has satisfactorily installed or has defaulted in meeting the required standards of construction shall be the basis for governing body action which accepts or rejects the improvements or withholds the improvements.
(3)
The Borough shall accept a performance guaranty or maintenance guaranty which is an irrevocable letter of credit if it:
(a)
Constitutes an unconditional payment obligation of the issuer running solely to the Borough for an express initial period of time in the amount determined pursuant to § 335-14C(2) above;
(b)
Is issued by a banking or savings institution authorized to do and is doing business in the State of New Jersey;
(c)
Is for a period of time of at least one year; and
(d)
Permits the Borough to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of this section 30 days or more in advance of the expiration date of the irrevocable letter of credit or such longer period in advance thereof as is stated in the letter of credit.
(4)
Wherever in these regulations the term performance guaranty, performance bond, maintenance guaranty, or maintenance bond is used, it is deemed to include an irrevocable letter of credit upon the conditions stated above.
D.
The Borough Clerk shall immediately notify the approving authority and the Borough Engineer when the performance guaranty has been approved and accepted by the governing body.
E.
Preconstruction conference. Prior to beginning construction, the developer shall arrange for a preconstruction conference between the developer, contractor, and Borough Engineer. The Borough Engineer shall be notified by the developer at least five days in advance of the start of construction.
F.
Inspection fees.
(1)
The cost of inspection shall be the responsibility of the developer. Deposits shall be made by certified check or bank money order to the Borough Clerk. This fee shall be in addition to the amount of the performance guaranty and all application fees outlined herein and shall be deposited in accordance with the following schedule. Upon completion of the development and all inspections, the developer shall receive an accounting of the expended funds. Any unexpended funds shall be returned to the developer.
(2)
The developer shall post a deposit with the Borough for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of either $500 or 5% of the estimated cost of improvements. The developer may appeal the Borough Engineer's estimate to the Borough Council. The Borough Council shall decide the appeal within 45 days of receipt of the appeal, in writing, to the Borough Clerk. For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by the developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid or encumbered to the Borough Engineer for inspections, the developer shall deposit the remaining 50% of the reasonably anticipated inspection fees. For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid or encumbered to the Borough Engineer for inspections, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit and the Borough Engineer is entitled to issue a stop-work order until inspection work is reinstated.
G.
No work shall be done without permission from and inspection by the Borough Engineer. No underground installation shall be covered until inspected and approved. The Borough Engineer's office shall be notified after each of the following phases of the work has been completed so that he may inspect the work: road subgrade, curb and gutter forms, curbs and gutters, road paving (after each coat in the case of priming and sealing), drainage pipes and other drainage structures before backfilling, shade trees and planting strips, street name signs and monuments.
H.
No utility installations installed by utility companies shall be subject to Borough inspection, except that where any work by a utility company involves disruption to, work on or other types of changes to Borough property or facilities, such as opening the surface of a street, or digging up property, the Borough may inspect the finished work product of the utility company to assure satisfactory completion of the work and the reinstatement of the public facility to its original condition consistent with Borough standards.
I.
Certificates of occupancy will be issued only when curbs, utilities, street lighting, traffic signs, street signs, refuse collection areas, parking area and traffic direction striping, functioning water supply and sewage collection and treatment facilities, necessary drainage to ensure proper drainage of the lot and surrounding land, final grading of lots, soil stabilization, shade tree(s), base course for the street and driveway, bikeways and sidewalks are installed to serve the lot and structure(s) for which the certificate is requested.
(1)
On-site improvements, such as but not limited to parks, pools, recreation improvements, clubhouses and other homeowners' association improvements, must be complete and usable before 1/2 of the total occupancy permits for the development are issued. In the event that a development is divided into phases, on-site improvements contained in each phase must be complete and usable before 1/2 of the total occupancy permits are issued in that phase. Streets shall not receive surface course paving until all heavy construction is completed.
(2)
Shade trees and other required plantings, including any required buffer area, shall be planted prior to the issuance of the certificate of occupancy, except that the Borough Engineer may waive this requirement if requested, in writing, by the developer and if the request is made for a nonplanting season. As a condition for granting this waiver, the developer shall state that the shade tree(s) and other required plantings will be planted within the earlier of either six months or prior to the beginning of the next nonplanting season (defined as June 15 to September 15 or any time of the year when the ground is frozen). The Borough Engineer shall not waive this requirement for more than three requests in any one phase of a development.
(3)
Where a certificate of occupancy is requested for a nonresidential development or a multifamily dwelling, the same plantings shall be required prior to the issuance of the certificate of occupancy as specified in Subsection I(2) above in addition to all foundation plantings and open space landscaping within 200 feet of the subject building (other than those plantings associated with any proposed adjacent building not yet constructed or completed).
(4)
If the developer of any type of development fails to plant the required material within the time specified, the Borough may utilize the cash portion of the performance guaranty to complete the plantings.
J.
Inspections by the Borough Engineer shall not subject the Borough or the Borough Engineer to claims, suits or liability of any kind that may arise because of defects or negligence, it being recognized that the responsibility to provide proper utilities and improvements and to maintain safe conditions at all times throughout the tract is upon the developer and his contractors or subcontractors, if any.
K.
After completing the improvement, the developer shall prepare two sets of the plans and the profiles amended to read "as constructed" and apply to the governing body for final inspection of the work. The Borough Engineer shall, within 30 days of completing the inspection, report, in writing, to the governing body indicating either approval partial approval, or rejection with a statement of reasons for any rejection. If partial approval is indicated, the cost of the improvements rejected shall be set forth.
L.
The governing body shall either approve, partially approve or reject the improvements and shall notify the obligor by certified mail of the contents of the Borough Engineer's report and the action of the approving authority with relation thereto not later than 65 days after receipt of the notice from the obligor of the completion of the improvements, except that no approval or partial approval shall be granted until an acceptable maintenance guaranty has been submitted and approved by the governing body to cover the improvements. Where partial approval is granted, the obligor shall be released from liability pursuant to its performance guaranty, except for a portion sufficient to secure completion of the improvements not yet approved, provided that 30% of the amount of the performance guaranty posted may be retained to ensure completion of all improvements. Failure of the governing body to send or provide such notification to the obligor within 65 days shall be deemed to constitute approval of the improvements, and the obligor and surety, if any, shall be released from liability pursuant to such performance guaranty for such improvements. The time allowed for installation of the improvements for which the performance guaranty has been provided may be extended by resolution of the governing body. As a condition or as part of any such extension, the amount of any performance guaranty shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation as determined as of the date of the passage of the resolution.
M.
If any portion of the required improvements are rejected, the approving authority may require the obligor to complete such improvements, and upon completion, the same procedure of notification as set forth above shall be followed.
N.
Upon request of the developer, in writing, by certified mail, with copies to the approving authority and Borough Engineer, the governing body may reduce the amount of the performance guaranty after considering the report of the approving authority and the Borough Engineer. The performance guaranty retained shall be sufficient to cover the cost of improvements that were not installed, uncompleted and/or defective, engineering costs and an amount equal to 15% of the cost of completed facilities to assure upkeep of these facilities until accepted by the governing body and until covered by a maintenance guaranty. Agreement to reduce the performance guaranty in accordance with this provision shall not constitute acceptance of any of the improvements by the governing body for ownership and/or maintenance responsibility. The reduction shall first be in the surety portion of the performance bond and only in the cash portion after all the surety portion has been released.
O.
The approval of any plat by the approving authority shall in no way be construed as acceptance of any street, drainage system or other improvement required by this chapter, nor shall such plat approval obligate the Borough in any way to maintain or exercise jurisdiction over such street, drainage system or other improvement. Borough jurisdiction shall commence only after acceptance of the improvement(s) by the governing body.
P.
Maintenance guaranty. No improvement shall be accepted by the governing body unless and until all of the following conditions have been met:
(1)
The Borough Engineer shall have certified, in writing, that all the improvements are complete and that they comply fully with the requirements of this chapter and of other applicable local ordinances.
(2)
The developer has provided a maintenance guaranty to the governing body in an amount equal to 15% of the cost of improvements and running for two years. Ninety percent of this total shall be in either certified check, bank money order or surety bond of a bonding company approved by and at the option of the governing body. The remaining 10% shall be in a certified check. The maintenance guaranties shall be in a form acceptable to the governing body and approved as to form and content by the Borough Engineer and Attorney. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by a performance or maintenance guaranty to another governmental agency, no performance or maintenance guaranty, as the case may be, shall be required by the Borough for such utilities or improvements.
(3)
To obtain release of the maintenance bond, the developer shall, after all required maintenance has been completed, apply to the governing body, in writing, by certified mail, with copies to the approving authority and Borough Engineer, for final inspection of the work. The Borough Engineer shall, within 30 days of receipt of request for inspection, report, in writing, to the governing body, with a copy to the approving authority, indicating either approval, partial approval or rejection of the improvements from a maintenance viewpoint with a statement of reasons for any rejection.
(4)
The governing body shall either approve or reject the improvements and release the maintenance bond or reduce the amount of the maintenance bond, following the same procedures as for performance bonds.
Q.
All moneys deposited by an applicant pursuant to plat approvals shall comply with the provisions of N.J.S.A. 40:55D-53.1, provided that the Borough may, by resolution, retain an amount not in excess of the amount permitted by statute for administrative and custodial expenses.
§ 335-15 Permits.
A.
No construction permit or certificate of occupancy shall be issued for any parcel of land or structure which was sold, or on which improvements were undertaken in violation of the provisions of this chapter or for use of a lot created by subdivision after the effective date of and not in conformity with the provisions of this chapter. No site improvements, such as but not limited to excavation or construction of public or private improvements shall be commenced except in conformance with this chapter and in accordance with plat approvals and the issuance of required permits.
B.
Compliance with the zoning requirements shall be required before the issuance of any construction permit or certificate of occupancy and before a new use may occupy a building when that use will increase the lot coverage or the parking requirements, or the floor area ratio or the number of dwelling units on site.
C.
It shall be unlawful to use any lot, tract or building, or part thereof, whether newly created or modified or involving a change in use, until a change of use permit shall have been issued by the Construction Official. No change of use permit shall be issued unless the land, building and use comply with this chapter, all matters incorporated on the approved subdivision or site plan shall be completed and certified by the Borough Engineer and the building and health codes are complied with.
D.
Temporary use permit.
(1)
Upon written application, the Zoning Officer is empowered to issue a temporary use permit for model homes and other purposes as specified in § 335-77T for a period not to exceed six months. The temporary use permit may be extended by the Zoning Officer, upon written application, for additional periods not to exceed six months each.
(2)
All applications for a temporary use shall be made to the Zoning Officer. The Zoning Officer shall have the discretion to transmit a copy of the application and all supporting documents to the Police Chief, the Fire Marshal, all subcode officials, the approving authority, the engineer and/or the Borough Engineer for their review and recommendations. No temporary use permit shall be issued except in compliance with this subsection and in compliance with N.J.S.A. 52:27D-133 and all of the regulations promulgated thereunder.
E.
A certificate of occupancy shall be required for the use of any building, or any part thereof, upon any transfer of title, change in occupancy, change in use or any modification or improvement.
§ 335-16 Planning Board.
A.
Establishment and composition.
(1)
Pursuant to the Municipal Land Use Law, P.L. 1975, c. 291,[1] the Borough of Berlin hereby establishes a Planning Board of nine members and two alternate members consisting of the following:
(a)
Class I: the Mayor.
(b)
Class II: one of the officials of the Borough other than a member of the governing body, 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 Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II member in the event that there be among the Class IV or alternate members of the Board a member of the Board of Education.
(c)
Class III: a member of the governing body, 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 Borough office, except that one such member may be a member of the Board of Education. The member of the Environmental Commission who is also a member of the Board as required by N.J.S.A. 40:56A-1 shall be a Class IV member unless there is among the Class IV or alternate members of the Board a member of the Board of Education, in which case the member common to the Board and the Environmental Commission shall be deemed a Class II member of the Board.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
(2)
The term of the member composing Class I shall correspond to his official tenure. The terms of the members composing Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of the term of office as a member of the Environmental Commission, whichever occurs first. The term of a Class IV member who is also a member of the Board of Education shall terminate whenever that person is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first. The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial Class IV term of no member shall exceed four years. Thereafter, the Class IV term of each such member shall be four years.
(3)
The Mayor shall appoint two alternate members to the Board. The alternate members shall meet the qualifications of Class IV members and shall be appointed as Alternate No. 1 and Alternate No. 2. The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years.
(4)
If a vacancy of any class shall occur other than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.
(5)
No member of the Board shall be permitted to act on any matter in which the member has, either directly or indirectly, a personal or financial interest.
(6)
Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.
B.
Powers and duties.
(1)
The Planning Board shall exercise to the same extent and subject to the same restrictions all the powers of the Zoning Board of Adjustment and the Planning Board pursuant to the provisions of N.J.S.A. 40:55D-1 et seq.
(2)
Appeals and variances; applications.
(a)
Appeals to the Board may be taken by any interested party. Each appeal shall be taken within the 65 days prescribed by the statute for filing a notice of appeal with the officer from whom the appeal is taken, together with three copies of said notice with the Secretary of the Board. Said notice of appeal shall specify the grounds for said appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
(b)
Applications addressed to the original jurisdiction of the Board without prior application to an administrative officer shall be filed with the administrative officer, including nine copies of the application, plot, plans, maps or other papers required by this chapter or any rule of the Board. The applicant shall obtain all necessary forms from the administrative officer who shall inform the applicant of the steps to be taken to initiate proceedings, the regular meeting dates of the Board and the earliest date for a public hearing that is at least 14 days from the date of filing a complete application.
(c)
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 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 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.
(d)
Any application under any subsection of this section may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Board shall act.
(e)
Power to reverse or modify decisions. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify the action, order, requirements, decision, interpretation or determination appealed from and to that end have all the powers of the administrative officer from whom the appeal was taken.
(f)
Time for decision. The Board shall render its decision not later than 120 days after the date an appeal is taken or not later than 120 days after the submission of a complete application to the Board. Failure of the Board to render a decision within this period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
(g)
Expiration of variance. In the granting of hardship and use variances, a time limit of one year from the date of the variance approval shall be set within which the owner shall secure a construction permit; otherwise, the variance granted shall be null and void. The approving authority may, for good cause shown, extend the period for securing a construction permit for an additional period not exceeding six months.
(h)
No variance or other relief may be granted under the terms of this section unless it 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. In respect to any airport hazard areas delineated under the Air Safety and Hazardous Zoning Act of 1983 (N.J.S.A. 6:1-80 et seq.), no variance or other relief may be granted which would be prohibited under the standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Board shall act.
(i)
The Board shall have such powers as are granted by law to:
[1]
Hear and decide, by majority vote, appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of this chapter.
[2]
Hear and decide, by majority vote, requests for interpretation of the Zoning Map or this chapter or for decisions upon other special questions upon which such Board is authorized by this chapter to pass.
(j)
Variances. The Board shall have the power to:
[1]
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation in the zoning provisions of this chapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of such property, grant, upon an application by an appeal relating to such property, a variance from such strict regulation so as to relieve such difficulties or hardship.
[2]
Where, in an application or appeal relating to a specific piece of property, the purposes of the Municipal Land Use Law would be advanced by a deviation from the requirements of this chapter and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to the zoning regulations; provided, however, that no variance from those departures enumerated in § 335-16B(2)(j)[3] below shall be granted under this subsection.
[3]
Use variances. In particular cases and for special reasons, grant a variance to allow departure from the regulations contained in this chapter to permit a use or principal structure in a district restricted against such use or principal structure, an expansion of a nonconforming use, deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use, an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4, an increase in the permitted density as defined in N.J.S.A. 40:55D-4, 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 lot or lots resulting from a minor subdivision, or a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district. A variance under these provisions shall be granted only by affirmative vote of at least five members of the Board.
[4]
Variances in the Pinelands Area.
[Added 12-26-2001 by Ord. No. 2001:16]
[a]
When a variance of density or minimum lot area requirements for the PR-1 or PR-2 Districts is granted by the Borough, Pinelands development credits shall be used for all dwelling units or lots in excess of that otherwise permitted without the variance.
[b]
When a variance or other approval for a nonresidential use not otherwise permitted in the PR-1 District is granted by the Borough, Pinelands development credits shall be used at 50% of the maximum rate permitted for Pinelands development credit use in the PR-1 District for parcels under 10 acres in size; at 75% of the maximum rate for parcels between 10 and 20 acres in size; and at 100% of the maximum rate for parcels over 20 acres in size. This requirement shall not apply to a variance or other approval which authorizes the expansion of or changes to existing nonresidential uses in accordance with N.J.A.C. 7:50-5.2.
[c]
When a variance or other approval for a residential use in the PC-1, PC-2 or PI-3 Districts is granted by the Borough, Pinelands development credits shall be used for 50% of the authorized units for parcels under 10 acres in size; for 75% of the authorized units for parcels between 10 and 20 acres in size; and for 100% of the authorized units for parcels over 20 acres in size.
(k)
Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for a variance or the issuance of a permit, the Board shall grant or deny approval of the application within 95 days after submission of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance or direction for issuance of a permit. The period for granting or denying subsequent approval(s) of a subdivision, site plan or conditional use shall be as otherwise provided in this chapter. Failure of the Board to act within this period shall constitute approval of the application.
(3)
Directing the issuance of permits. The Board shall:
(a)
Direct the issuance of a permit for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved on an adopted Official Map whenever one or more parcels of land located in these areas cannot yield a reasonable return to the owner unless a construction permit is granted, provided that the approval given will, as little as practicable, increase the cost of opening such street or tend to cause minimum change to the Official Map, and the Board shall impose reasonable requirements as a condition of granting the permit so as to promote the health, morals, safety and general welfare of the public.
(b)
Direct the issuance of a permit for a building or structure not related to a street where the denial of the permit would entail practical difficulty or unnecessary hardship or the circumstances do not require the building or structure to be related to a street, except that the issuance of such a permit shall be subject to conditions that will provide adequate access for fire fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and subject to conditions that will protect any future street layout shown on the Official Map or on a general circulation plan element of the Master Plan.
(4)
Plan approval required; deviations from approved plan.
(a)
In the event that the Board disapproves a development plan, no construction permit or certificate of occupancy shall be issued. Any applicant wishing to make a change in an approved application shall follow the same procedure as the original application.
(b)
The Board shall permit a deviation from the final plan if caused by change of conditions beyond the control of the developer since the date of final approval and the deviation would not substantially alter the character of the development or substantially impair the intent and purpose of the Master Plan and this chapter.
(5)
Master Plan. The Board shall make and adopt and, from time to time, amend a Master Plan for the physical development of the Borough, taking into account any areas outside its boundaries which in the Board's judgment bear essential relation to the planning of the Borough in accordance with the provisions of N.J.S.A. 40:55D-28.
(6)
Other.
(a)
The Board shall administer the provisions of this chapter in accordance with the provisions of this chapter and the Municipal Land Use Law.
(b)
The Board shall participate in the preparation and review of programs or plans required by state or federal law or regulations.
(c)
The Board shall assemble data on a continuing basis as part of a continuous planning process.
(d)
The Board shall consider and make report to the governing body 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-26a, and also pass upon other matters specifically referred to the Planning Board by the governing body pursuant to the provisions of N.J.S.A. 40:55D-26b.
(e)
The Board shall perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the governing body or other agencies or officers.
(f)
If the Board or its Development Committee finds that an application for conventional site plan conforms to the definition of "minor site plan," the Board may waive notice and public hearing requirements. Minor site plan approval shall be deemed to be final approval by the Board, provided that the Board or said Committee may condition such approval on terms ensuring the provision of improvements pursuant to N.J.S.A. 40:55D-38, 40:55D-39, 40:55D-41 and 40:55D-53.
(g)
Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.6, the Board shall condition any approval 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.
C.
Organizational and administrative provisions.
(1)
Organization of Board. The Planning Board shall elect a Chairman and Vice Chairman from the members of Class IV and a Secretary.
(2)
Experts and staff. The Board may appoint, employ or contract for services of experts and staff as it may deem necessary. The Board shall not authorize expenditures which exceed, exclusive of the gifts or grants, the amount appropriated by the governing body for its use.
(3)
Rules and regulations. The Board shall adopt such rules and regulations as are necessary to carry out its duties.
(4)
Conflicts of interest. No member shall act on any matter in which the member has, either directly or indirectly, any personal or financial interest. Whenever any member is disqualified, the member shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto.
(5)
Meetings.
(a)
Meetings shall be scheduled no less than once a month, and any meeting shall be held as scheduled unless canceled for lack of applications for development to process.
(b)
Special meetings may be called by the Chairman or on request of any two Board members, provided that there is notice to the members and the general public in accordance with law.
(c)
No action shall be taken at any meeting without a quorum being present. All actions shall be by majority vote of a quorum except where a specified portion of the full authorized membership is required pursuant to N.J.S.A. 40:55D-9, 40:55D-26, 40:55D-34 and 40:55D-70d.
(6)
Minutes. Minutes of regular and special meetings shall be kept and shall include the names of persons appearing and addressing the Board and of persons appearing by attorney, the action taken, the findings, if any, and reasons therefor. The minutes shall be available for public inspection during normal business hours at the office of the Borough Clerk. Any interested party shall have the right to compel production of the minutes and be charged a fee for their reproduction.
(7)
Hearings.
(a)
Rules. The Board may make rules governing the conduct of hearings. The rules shall be consistent with N.J.S.A. 40:55D-1 et seq. and this chapter. The Board may waive the required notices and hearing for minor and exempt subdivisions and minor and exempt site plans, except where a variance or conditional use is part of the application.
(b)
Oaths. The presiding officer, or such person as he may designate, shall have power to administer oaths or issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties. The provisions of the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
(c)
Testimony. The testimony of all witnesses shall be taken under oath or affirmation by the presiding officer and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
(d)
Evidence. Technical rules of evidence shall not be applicable, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(e)
Records. The Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof, upon the request of any interested party, at his expense.
(f)
Certified court reporter. If an applicant desires a certified court reporter, the cost of recording testimony and transcribing it and providing a copy of the transcript to the Borough shall be at the expense of the applicant, who shall also arrange for the reporter's attendance.
(g)
When any application before the Board requires hearings at two or more meetings, a member of the Board who was absent for one or more of the meetings shall be eligible to vote on the matter, provided that such member has received a transcript or recording of the meeting(s) from which he/she was absent and certifies, in writing, to the Board that he/she has read such transcript or listened to such recording.
(8)
Complete application and commencing applicable time periods.
(a)
An application for development shall be complete for purposes of commencing the applicable time period for action at the time the application is certified complete by the Board. In the event the application is not certified complete within 45 days of the date of its submission, the application shall be deemed complete upon the expiration of the forty-five-day period, after which the applicable time period for acting on the application shall begin, unless:
(b)
The applicant may request that one or more of the submission requirements be waived, in which event, the approving authority shall grant or deny the request within 45 days.
(c)
Nothing herein shall be construed as diminishing the applicant's obligation to prove that he is entitled to approval of the application.
(d)
The Board may subsequently require correction of any information found to be in error, submission of additional information not specified in the ordinance, and revisions in documents as are reasonably necessary to make an informed decision on whether the requirements have been met. The application shall not be deemed incomplete for lack of any such additional information or revisions required by the Board.
(9)
Decisions.
(a)
Each decision on an application for development shall be reduced to writing, including findings of fact and conclusions thereon, by:
[1]
A resolution adopted at a meeting held within the required time period for action on the application; or
[2]
A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the Board voted to grant or deny approval. Only the members who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution.
(b)
An action resulting from the failure of a motion to approve an application shall be memorialized by a resolution, as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution.
(c)
The vote on any such resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board. However, the date of the adoption of the resolution shall constitute the date of the decision for purposes of mailings, filings and publications and set forth in § 335-17, Public hearings and notices. If the Board fails to adopt a resolution or memorializing resolution, any interested party may apply to the Superior Court in a summary manner for an order compelling the Borough 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 Borough.
(10)
[3]Site Plan Review Advisory Board. The Planning Board Chairperson shall appoint three members of the Planning Board to serve on the Site Plan Review Advisory Board and designate one as the Advisory Board Chairperson. The Zoning Officer shall also serve on the Site Plan Review Advisory Board. The Planning Board Engineer and Attorney will provide services on an as-needed basis. Persons appointed to the Advisory Board shall have no power to vote or take action required by the Planning Board. The Advisory Board shall review subdivision and site plan applications and any other functions which the Planning Board may refer to it to identify compliance or noncompliance with this chapter and to make recommendations to the Planning Board.
[Added 3-1-2010 by Ord. No. 2010-01]
[3]
Editor's Note: Former Subsection C(10), Development Committee, was repealed 5-5-2008 by Ord. No. 2008-04.
(11)
Economic Development Committee. The Economic Development Committee shall review any application for development within which the Central Business District design standards apply (see § 335-35.1A). The Committee shall provide advice to applicants and the Board concerning the compliance of the application for development with the design standards. Persons on the Committee shall have no power to vote or take any action required by the Board unless otherwise an appointed member of said Board. Nothing herein shall extend the time within which the Planning Board shall act pursuant to N.J.S.A. 40:55D-1 et seq.
[Added 10-4-2010 by Ord. No. 2010-12]
§ 335-17 Public hearings and notices.
The approving authority shall set the date for and conduct a public hearing on each application for development, except that the approving authority may waive the required notices and hearing for minor and exempt subdivisions and minor and exempt site plans unless a variance or conditional use is part of the application. All public hearings shall follow the requirements of the Municipal Land Use Law as summarized below (N.J.S.A. 40:55D-10, 40:55D-11 and 40:55D-12):
A.
Any maps and documents submitted for approval shall be on file and available for public inspection at least 10 days before the hearing date during normal business hours in the office of the administrative officer.
B.
Each decision on any application shall be in writing and shall include findings of facts and conclusions based thereon.
C.
A copy of the decision shall be mailed by the approving authority within 10 days of the date of the decision to the applicant or, if represented by an attorney, then to the attorney, and a copy shall also be filed in the office of the administrative officer. A brief notice of the decision shall also be published in the official newspaper of the Borough, the publication of which shall be arranged by the administrative officer. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision.
D.
All notices shall state the date, time and place of the hearing, the nature of the matters to be considered and an identification of the property proposed for development by street address, if any, and a reference to lot and block numbers and the location and time(s) at which any maps and documents are available for public inspection. All notices shall include references to any and all requests for variances or directions for the issuance of a permit.
E.
All public hearing dates shall be set by the approving authority, but all hearing notices shall be the responsibility of the applicant and shall be given at least 10 days prior to the hearing date.
(1)
Public notice of a hearing on each application for development 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.
(2)
Notice shall be given to the owners of all real property, as shown on the current tax duplicate, located within 200 feet in all directions of the property which is the subject of such hearing. This notice shall be given by either serving a copy thereof on the property owner, as shown on the 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 current tax duplicate.
(3)
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.
(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.
(5)
Notice of hearings on applications of approval of a major subdivision or a major site plan requiring public notice pursuant to N.J.S.A. 40:55D-12a shall be given, in the case of a public utility, cable television company or local utility which possesses a right-of-way or easement within the Borough and which has registered with the Borough in accordance with N.J.S.A. 40:55D-12.1, by serving a copy of the notice on the person whose name appears on the registered form on behalf of the public utility, cable television company or local utility or mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form. The administrative officer shall adopt a registration form and shall maintain a record of all public utilities, cable television companies and local utilities which have registered with the Borough pursuant to N.J.S.A. 40:55D-12.1a. The registration form shall include the name of the public utility, cable television company or local utility and the name, address and position of the person to whom the notice shall be forwarded as required by N.J.S.A. 40:55D-12h. The information contained therein shall be made available to any applicant, as provided in N.J.S.A. 40:55D-12c. There is hereby imposed upon each public utility, cable television company, and local utility which registers in accordance with this section a registration fee of $10 as permitted by N.J.S.A. 40:55D-12.1c.
(6)
Notice shall be given by personal service or certified mail to:
(a)
The County Planning Board where the hearing concerns a 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 Borough boundary.
(b)
The Commissioner of Transportation where the hearing concerns a property adjacent to a state highway.
(c)
The Director of the Division of State and Regional Planning where the hearing concerns a property which exceeds 150 acres or exceeds 500 dwelling units, and the notice to the Director shall include a copy of any maps or documents required to be on file with the administrative officer.
F.
The applicant shall file an affidavit of proof of service with the Borough agency holding the hearing. Any notice made by certified mail shall be deemed complete upon mailing.
§ 335-18 Citizens Advisory Committee.
A Citizens Advisory Committee is hereby created pursuant to N.J.S.A. 40:55D-27. The Committee shall consist of three members appointed by the Mayor who shall serve at the pleasure of the Mayor. Persons appointed to said Committee shall have no power to vote or take any action required by the approving authority. The Advisory Committee shall review subdivision and site plan applications and any other functions which the approving authority may refer to it to identify compliance or noncompliance with this chapter and to make recommendations to the approving authority.
§ 335-19 Violations and penalties; civil action.
A.
In case any structure is erected, altered, converted or maintained, or any structure or land is used in violation of this chapter, the Borough or an interested party may institute appropriate action to prevent such unlawful erection, alteration, conversion, maintenance or use; restrain, correct or abate such violation; prevent the occupancy of said structure or land; and prevent any illegal act, conduct, business or use in or about such premises. Any person convicted of such violations before a court of competent jurisdiction shall be subject to the penalties set forth at § 335-11.1.
[Amended 11-2-2006 by Ord. No. 2006-20]
B.
If, before final subdivision approval, any person as owner or agent transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval, any land which forms a part of a subdivision for which Borough approval is required, such person shall be subject to a penalty not to exceed $1,000, and each lot disposition so made may be deemed a separate violation.
C.
Civil action.
(1)
In addition, the Borough may institute and maintain a civil action:
(a)
For injunctive relief.
(b)
To set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of compliance has not been issued in accordance with N.J.S.A. 40:55D-56, but only if the Borough Planning Board remains in effect and only if the ordinance governing subdivision and site plan standards and procedures remains in effect in accordance with N.J.S.A. 40:55D-38.
(c)
In the event that the Borough is successful in instituting and maintaining any such civil litigation, then the party against whom said litigation was instituted and from and against whom said relief was sought shall be responsible for reasonable counsel fees and costs of said litigation incurred by the Borough in the course of pursuing and maintaining said action.
D.
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.
§ 335-20 Site Plan Review Advisory Board.
[Added 3-1-2010 by Ord. No. 2010-01[1]]
A.
Prior to the filing of a formal application, the Site Plan Review Advisory Board may meet and review a proposed application, whether for preliminary, final, general development plan, conditional use, or change of use.
B.
Prior to being heard by the Planning Board, all applications, whether for preliminary, final, general development plan, conditional use, or change of use approval, may be presented to the Site Plan Review Advisory Board for review.
C.
Conduct of the Site Plan Review Advisory Board meeting.
(1)
Prior to the filing of a formal application. The Site Plan Review Advisory Board meeting is a working session between the Advisory Board and the applicant. The meeting is used to provide the applicant with a comprehensive review of the application, to provide insight as to the deficiencies of the plan and to offer suggestions and recommendations for the improvement of said plan, to analyze the application to help in determining completeness, and to comment on the acceptability of the proposed plan. It is not a public hearing and need not be advertised. It is not a formal review, and no minutes will be kept nor action taken.
(2)
After the filing of a formal application. The Site Plan Review Advisory Board meeting is a working session between the Advisory Board and the applicant. The meeting is used to provide the applicant with a comprehensive review of the application, to provide insight as to the deficiencies of the plan and to offer suggestions and recommendations for the improvement of said plan, to analyze the application to help in determining completeness, and to comment on the acceptability of the proposed plan. It is not a formal review, and no minutes will be kept nor action taken except as otherwise provided for herein. It is not a public hearing and need not be advertised unless members of the Planning Board are in attendance. The Zoning Officer shall be considered an officer of the Borough of Berlin and not a member of the Planning Board for purposes of attendance at the Site Plan Review Advisory Board.
(3)
Attendance by the applicant or the applicant's representatives is not mandatory but is strongly encouraged.
(4)
The members of the Site Plan Review Advisory Board will review an application and will offer comments to the applicant. The Administrative Officer and/or his or her representative will prepare a report of all the outstanding review issues that remain to be addressed by the applicant.
D.
Upon completion of review of an application by the Site Plan Review Advisory Board, the application shall be scheduled before the Planning Board.
[1]
Editor's Note: This ordinance also superseded former § 355-20, Development Review Committee, added 7-7-2008 by Ord. No. 2008-07.
§ 335-21 Approval procedures for general development plans.
[Added 12-18-2002 by Ord. No. 2002:18]
A.
Purpose. The opportunity to submit a general development plan (GDP) is intended to provide a means to coordinate long-range public and private planning of large-scale development projects in those zoning districts where GDP's are permitted. Approval of a GDP is intended to provide protections as set forth in N.J.S.A. 40:55D-45.1 prior to preliminary and final site plan and/or subdivision approvals. Approval of a GDP is separate, and must be acted upon separately, from preliminary and final site plan/or subdivision approvals.
B.
Eligibility.
(1)
Applicants of large tracts of land shall be permitted to file a GDP application prior to, or simultaneously with, the filing of a preliminary subdivision or site plan application provided all the requirements are met for each form of application. For purposes of this chapter, "large tracts of land" as used herein shall mean tracts of 100 acres or greater.
(2)
Applicants may submit GDP plans for review and approval simultaneously with separate site plan and/or subdivision applications that may, or may not, contain conditional use and/or variance requests for any phase of the GDP.
C.
Filing procedures; items required.
(1)
The applicant shall file with the Administrative Officer at least 21 days prior to the meeting of the reviewing board at which such application is to be considered; 15 black-on-white copies of the GDP in plat form together with any supporting data, two completed copies of the application form, two copies of the Berlin Borough Land Development Review Submission Checklist[1] indicating a submission of all requirements for GDP approval along with two copies of all items required for such approval as set forth on such checklist and the applicable fees. All plats shall be folded to file folder size with the title block facing out.
[1]
Editor's Note: Said checklist is on file in the Borough offices.
(2)
The plat and accompanying written and other data and reports shall be prepared by appropriate professional experts, licensed by the State of New Jersey when applicable, in sufficient detail to allow for reasonable review by the reviewing board's own experts at the applicant's expense and shall include the following:
(a)
Be clearly and legibly drawn.
(b)
Graphic scale not less than one inch equals 200 feet. If more than one sheet is required, a separate sheet showing the overall site on one sheet shall be submitted as a cover page to the complete set of plans. Sheet sizes shall be no larger than 36 inches by 42 inches.
(c)
As part of the land use plan, the GDP shall set forth the number of dwelling units, the amount of nonresidential floor space, the residential density and the nonresidential floor area ratio for the planned development, in its entirety, and by sections according to any schedule which sets forth the timing of sections of the development. The proposed land use plan shall indicate the total tract area and the general locations of the land uses to be included in the development, including existing and proposed lot lines and the area of each lot. The total number of dwelling units by types and locations and the nonresidential floor area by types and location shall be delineated on the overall plan, and identified according to any proposed sections of development according to a timing schedule. A legend shall identify the land area devoted to each land use type with a calculation of the residential density and the gross floor area within each section and in the overall tract.
(d)
A circulation plan showing the general location and types of transportation facilities including pedestrianways, off-street parking and loading spaces, aisles, driveways, and streets, as well as proposed improvements to the existing transportation and highway system, either on-site or off-tract, along with a report analyzing the impact of traffic generated by the proposed GDP on nearby roadways.
(e)
An open space plan showing the proposed area and general location of parks and any other land area to be set aside for open space, wetlands, other conservation areas, recreational areas, and buffer areas together with a general description of any improvements proposed to be made thereon, including a plan for the operation and maintenance of these areas and the design and layout of landscaping as required by the Borough Landscape Ordinance. The submission shall include the proposed governing documents and by-laws of any homeowners, community or condominium association to be established.
(f)
A utility plan indicating the need for and showing the proposed locations of the sewage collection and treatment system, water supply and distribution system, drainage facilities, gas, CATV, telephone and electric supplies, lighting, proposed methods of handling solid waste disposal, the recycling of recyclable materials, and a plan for the operation and maintenance of the proposed utilities.
(g)
The proposed, schematic stormwater management plan and topographical survey setting forth the proposed method of controlling and managing stormwater on-site and, if appropriate, related off-tract stormwater management facilities.
(h)
An environmental inventory including a general description of the vegetation and any major wooded areas; soil types; topography; geology; surface hydrology including wetlands and wetland buffer areas, stream corridors, floodways and flood hazard areas; climate; cultural resources of the site; existing and manmade structures or features; and the probable impact of the development on the environmental attributes of the site.
(i)
A community facility plan indicating the scope and type of supporting community facilities which may include, but not be limited to, educational, cultural, historic, library, hospital, fire house, police station, and recreation uses.
(j)
A housing plan setting forth the number of housing units to be provided and the extent to which any housing obligation assigned to the Borough under the Fair Housing Act and the rules of the Council on Affordable Housing will be provided by the development, if applicable.
(k)
A local service plan indicating those public services which the applicant proposes to provide and which may include, but are not limited to, water service, sewage collection and treatment, electric, gas, telephone service, cable TV, solid waste collection and disposal, and a plan for separation and recycling of recyclable materials sufficient to allow a determination that adequate capacity exists for such utilities.
(l)
A fiscal report estimating the demand on municipal services to be generated by the development and any financial impacts to be faced by the Borough or the local and regional school districts as a result of the development including a projection of tax revenues for the Borough, local and regional school districts, fire district and county according to a projected timing schedule for completion of the development.
(m)
A proposed timing schedule including the terms and conditions intended to protect the interests of the public and of the residents and nonresident occupants of any section of the development prior to completion of each section as well as prior to completion of the entire development. Each section of the development shall coordinate the applicant's interest with the public interest in such things as the size of each phase, financing costs, bonding and mixed uses with logical infrastructure improvements that function properly at the end of each section. Logical infrastructure shall include, but not be limited to, the water distribution system and fire hydrants, sewage collection and treatment system, coordinated on-site circulation systems, off-tract road improvements, dedicated open space, stabilized soil, and stormwater control facilities.
(n)
An estimate of the cost of completing required public and common services including recreational amenities, circulation system improvements, utility lines, community facilities, and such other improvements as may be deemed necessary. This estimate shall include the cost of all on-site improvements and a fair share of all required off-site improvements.
(o)
A written, proposed, applicant's agreement between the Borough and the applicant or its assignees. A draft agreement shall be initiated by the applicant and submitted simultaneously with the GDP application. Any revised draft shall be based upon the approval of the GDP and shall be submitted prior to or as part of a preliminary and/or final subdivision or site plan approval for any phase or section of the development. The final agreement shall be executed following, but as a condition of, final subdivision or site plan approval of any phase or section of the development, and shall thereafter be amended, as appropriate, for each subsequent phase or section of the development. The agreement shall specify:
[1]
The length of time within which the zoning rights are vested, not to exceed the period(s) set forth in the reviewing board's resolution approving the GDP and in Subsection D(5) of this section; and
[2]
The applicant's commitments to completing any applicable infrastructure improvements, community facilities, and, if applicable, the method of participating in the Borough's housing program.
[3]
Subject to the rights of the applicant pursuant to N.J.S.A. 40:55D-45.1a and as referenced above, the applicant's obligation to reasonably remedy environmental or infrastructure problems identified by the Borough and required to be remedied as a result of changes in applicable state or federal laws, ordinances or regulations.
[4]
The applicant's commitment to a phasing or timing schedule that includes updating of traffic, water, sewer and similar facilities as part of the submission of each preliminary and final plat for each phase or section of the development in order to make any necessary adjustments to the timing schedule and/or on-site or off-tract improvements for the overall GDP based on actual experience rather than initial projections. The agreement may provide the reviewing board with the right to relieve the applicant of all or portions of this obligation depending on how current the previous submissions and the data have been, how much development has occurred either on-site or in nearby areas and the degree to which other conditions affecting the issues may have changed.
[5]
The form of agreement shall contain the right of the Borough to require the applicant to provide updating or prior studies at each phase of the development and to pay the costs of increased or decreased fair share of on-site and off-tract improvements which are required by the applicable law governing such improvements based upon the pro rata share assigned to the applicant, in order to deal with the need to accelerate, add, reduce or eliminate those improvements directly due to the development.
[6]
The form of agreement shall provide for cooperation in the execution of endorsements relating to permits for federal, state, county or other governmental agencies, as permitted by law. The applicant's agreement executed shall be recorded against the property upon which the GDP approval is being obtained. Evidence of such recording acceptable to the Borough Solicitor must be given by the Borough Clerk before the Borough Clerk may sign the final site plan or subdivision plans.
(p)
Nothing herein shall be construed to lessen the applicant's obligation to abide by applicable state or federal laws, ordinances and regulations such as environmental, infrastructure, and housing requirements that changes might require modification to the GDP approval relating to construction, funding, phasing, and/or site plan design.
D.
Action by reviewing board; effect and duration for GDP.
(1)
Prior to GDP approval, the reviewing board shall schedule and conduct a public hearing on the matter. The applicant must comply with the required requests for notice of a public hearing.
(2)
The reviewing board shall approve or deny the GDP within 95 days of submitting a complete application, or within such further time as may be consented to by the applicant. Failure of the reviewing board to act within the period prescribed shall constitute GDP approval. A GDP may be granted approval conditioned on necessary county, state, municipal, or other approving or licensing agencies acting favorably on, or issuing, their permits and/or licenses as may be required.
(3)
The GDP approval does not authorize the applicant to commence either construction or site work. The applicant must obtain subdivision and/or site plan approval, as applicable, prior to the commencement of either construction or site work.
(4)
The reviewing board shall find the following facts and conclusions as part of a GDP approval:
(a)
The departures by the proposed GDP from zoning otherwise applicable to the subject property conform to zoning ordinance standards set forth for the GDP planned development for the zone in which the property is located.
(b)
That proposals for maintenance and conservation of any common open space are reliable, and the amount, location and purpose of the common open space are adequate.
(c)
That provisions through the physical design of the proposed GDP for public services, control over vehicular and pedestrian traffic, and the amenities of light and air, recreation and visual enjoyment are adequate.
(d)
The proposed GDP will not have an unreasonably adverse impact upon the area in which it is proposed to be established.
(e)
A GDP proposed to be constructed over a period of years has adequate terms and conditions intended to protect the interests of the public and of the residents, occupants and owners of the proposed development in the total completion of the development.
(5)
The reviewing board shall establish the term and effect of the GDP. The GDP, once approved, shall vest in the applicant the right to develop the specified number of dwelling units, the amount of nonresidential floor space, the residential density, and the nonresidential floor area ratio, as authorized by and for the term set forth in the GDP. The terms and conditions of the GDP shall also, to the extent specified, determine the extent and nature of the applicant's rights, obligations and responsibilities with respect to circulation, on- and off-tract improvements, open space, utilities, stormwater management, environmental preservation, community facilities, housing and local services.
(a)
The term of effect shall not exceed 20 years from the date the applicant receives final approval of the first section of the GDP, or such lesser time approved by the reviewing board provided the approval period is at least five years. In making its determination regarding the duration of the term of effect of the GDP approval, the reviewing board shall consider the number of dwelling units or amount of nonresidential floor area to be constructed, prevailing economic conditions, the timing schedule to be followed in completing the development and the likelihood of its fulfillment, the applicant's capability of completing the proposed development, and the contents of the GDP and any conditions the reviewing board attaches to the approval thereof.
(b)
The approval maybe extended by the Planning Board for good cause for additional two-year periods but the Planning Board shall have the right to include with each extension a requirement that the applicant comply with such additional conditions as the Planning Board may deem appropriate and in the public interest. In no case shall the term of the effect of the approval and any extensions exceed 20 years from the date upon which the applicant receives final approval of the first section of the planned development.
(c)
The applicant shall, to the satisfaction of the Borough, construct required improvements or post sufficient bond, notes, or letters of credit, to insure that, in the event that the development is not fully developed prior to the expiration of the general development plan, that adequate recreational, circulation, utility, and community facilities shall be provided to the residents and occupants of those portions of the development which are completed.
(d)
Approval of the general development plan does not relieve the applicant of the necessity to apply for preliminary and final site plan or subdivision approval for each and every section of the development and to fully comply with the requirements of this chapter.
(e)
The Planning Board may condition approval upon compliance with any reasonable condition not in violation of the terms of this chapter or other applicable local, state or federal laws.
E.
Modifications to GDP or timing schedules.
(1)
If, after the approval of a GDP, the applicant wishes to revise the timing schedule, or wishes to make any variation in the location of land uses within the development, or to increase the density of residential development or the floor area ratio of nonresidential development in any section of the development, the applicant shall be required to gain the prior approval of the reviewing board, except that the applicant may reduce the number of residential units or amount of nonresidential floor space by no more than 15%, or reduce the residential density or nonresidential floor area ratio by no more than 15% provided, however, that an applicant may not reduce the number of low- and moderate-income residential units to be provided, if any, without the prior approval of the reviewing board, and provided further there shall be no reduction in the level of improvements, off-tract contributions, or similar conditions of the GDP without prior approval of the reviewing board.
(2)
A revision to the timing schedule shall be reviewed by the reviewing board and the granting or denial of any extensions of time shall be based on the degree to which matters are judged to be, or to have been, within the reasonable control of the applicant, or the degree to which matters may have been beyond the control of the applicant.
(3)
Upon acquiring a certificate of occupancy for every residential unit and every nonresidential structure in each section of the development as set forth in the approved GDP, the applicant shall notify the Administrative Officer, by certified mail, as evidence that the applicant is fulfilling his obligations under the approved GDP. If the Borough does not receive such notification at the completion of any section of the development, the Borough shall notify the applicant, by certified mail, in order to determine whether or not the terms of the approved plan are being complied with.
(4)
If the applicant does not complete any section of development within eight months of the date provided for in the approved GDP, or if at any time the Borough has cause to believe that the applicant is not fulfilling his obligations pursuant to the approved GDP, the Borough shall notify the applicant, by certified mail, and the applicant shall have 10 days within which to give evidence that he is fulfilling his obligations pursuant to the approved GDP. The Borough thereafter shall conduct a hearing to determine whether or not the applicant is in violation of the approved GDP. If after the hearing, the Borough finds good cause to terminate the approval, it shall provide written notice of same to the applicant and the approval shall be terminated 30 days thereafter.
(5)
In the event that an applicant who has GDP approval does not apply for preliminary site plan or subdivision approval for the planned development that is the subject of the GDP approval within five years of the date upon which the GDP has been approved by the reviewing board, the Borough shall have cause to terminate the approval. For purposes of this chapter, the application for preliminary approval within the five-year period as required herein will be satisfied by submitting one or more applications for one or more sections of a phased development within this five-year period, and will remain in compliance provided subsequent preliminary plat submissions for further sections of the development are submitted in a timely manner consistent with the timing schedule approved as part of the GDP.
(6)
In the event that a development which is the subject of an approved GDP is completed before the end of the term of the approval, the approval shall terminate and the development shall be considered complete on the date upon which the certificate of occupancy has been issued for the final residential and nonresidential structure in the last section of the development in accordance with the timing schedule set forth in the approved GDP and the applicant has fulfilled all his obligations pursuant to the approval.