Chatham City Zoning Code
ARTICLE XXI
Fees, Guarantees, Inspections and Off-Tract Improvements
§ 165-166 Fees and escrow deposits.
[Amended 4-27-1987 by Ord. No. 6-87]
A.
The following fees and deposits shall be paid by every applicant for development within the Borough of Chatham, Morris County, New Jersey, pursuant to N.J.S.A. 40:55D-1 et seq.
B.
The type of application for development as hereinafter provided shall be those applications which may be submitted to the Planning Board or the Zoning Board of Adjustment for consideration pursuant to N.J.S.A. 40:55D-1 et seq.
C.
Every application for development shall be accompanied by two separate checks payable to the Borough of Chatham: one for the application charge, and the other for establishment of an the escrow account in connection with a development matter, in accordance with the following schedule:
[Amended 12-28-1992 by Ord. No. 12-92; 8-8-2011 by Ord. No. 11-14; 3-11-2013 by Ord. No. 13-04]
Type of Application | Application Charge Plus | Escrow | |
|---|---|---|---|
Minor subdivision | $200 + $25 for each additional lot | $1,250 | |
Major subdivision | $400 + $25 for each proposed lot, with maximum of $2,500 | $2,500 | |
Major subdivision final approval | $100 + $25 for each lot, with maximum of $1,500 | $1,500 | |
Site plan preliminary approval | A minimum fee of $400, or 2% of the estimated cost of development or $2,500, whichever is less | $2,500 | |
Site plan final approval | 50% of the preliminary approval fee | $1,500 | |
Parking layout review | $150 | $750 | |
Technical review | $100 + $25 for each meeting | $750 | |
Conditional use | $250 | $1,250 | |
(D) Variances | $400 | $1,250 | |
(C) Variances | $275 | $1,250 | |
Waiver of site plan in connection with change of permitted use | $250 | $1,250 | |
Request for interpretation to Zoning Board of Adjustment | $150 | $1,250 | |
Appeal of Borough Zoning Official to Zoning Board of Adjustment | $150 | $1,250 | |
Appeal to governing body | $200 | $1,250 |
D.
In the case of applications involving more than one category of application for development, such as an application for site plan or subdivision approval coupled with a variance, the application charge shall be the highest of the applicable charges, plus 50% of all other applicable charges.
E.
The application charge is a nonrefundable flat fee to cover administrative expenses. On applications for site plan approval, the applicant shall submit a statement in support of the calculation of the application charge, which statement shall be subject to review by the Board. The escrow account is established to cover the cost of professional services, including engineering, legal and other expenses connected with the review of submitted materials. Escrow account funds not utilized in the review process will be returned to the applicant.
(1)
As invoices are received from time to time by the Board or by the Borough from the professional consultants of the Board or the Borough (attorney, planner, professional engineer, traffic engineer, and others, who are employed to review the application for development), the Chief Financial Officer of the municipality will immediately request the applicant in writing to pay such additional amount in the escrow account to equal the initial deposit plus all outstanding directly related professional fee invoices. The Chief Financial Officer will review the account at least monthly to insure that the escrow fund is maintained at the prescribed level.[1]
[1]
Editor's Note: Former Subsection E(2), regarding payment of invoices from the escrow account and the general fund, which immediately followed this subsection, was repealed 2-8-2021 by Ord. No. 21-01.
F.
The Board hearing the application shall not proceed with any hearing and shall not take any action (except to deny an application because of nonpayment of fees) and shall not release any signed maps, site plans, or plans, without first obtaining from the Chief Financial Officer a certification that the applicant has paid all required charges and escrow amounts.
[Amended 3-11-2013 by Ord. No. 13-04]
G.
Upon completion of the processing of an application for development (whether by way of withdrawal, denial, approval, conditional approval or other disposition), the Chief Financial Officer will, as soon as practicable, either invoice the applicant for any remaining fees that may be due or return any excess funds on hand to the applicant.
[Amended 2-8-2021 by Ord. No. 21-01]
H.
Upon request in writing, the Chief Financial Officer will provide the applicant with a statement of the escrow account and with copies of all professional consultants' fee invoices related to the application. The applicant may request a hearing as to the reasonableness and/or necessity of any of the costs incurred. If such request is received in writing, the Council will hold a hearing with respect to the issues raised by the applicant at the next available public meeting. The professional consultants involved will be advised of the pending hearing. The failure of the applicant to protest an invoice shall not be construed to be an acknowledgment of the reasonableness of the invoice in the event the issue should arise in any later proceeding.
I.
Upon receipt of approval of the development plan, and as a condition thereto, the applicant shall pay to the Borough as a deposit with respect to professional inspection fees the sums required under the schedule that appears below. In the case of a development plan involving improvements that are intended to be accepted by the municipality, the estimated construction costs shall be approved by the Borough Engineer and the Mayor and Council. In the case of nonmunicipal improvements (such as the improvements within a site-planned area), the estimated construction costs shall be approved by the Borough Engineer and the Board acting on the application.
Estimated Construction Cost of Site Plan and Subdivision Items to Be Inspected by the Engineer | Inspection Charge (percent of construction cost) |
|---|---|
Less than $5,000 | 3% |
$5,000 to $10,000 | $150 plus 2% of excess over $5,000 |
Over $10,000 | $275 plus 2% of excess over $5,000 |
In the event that the actual reasonable costs of inspection exceed the deposit set forth herein, the Chief Financial Officer will invoice the applicant for the difference. The applicant will not be deemed to have satisfied the conditions of development plan approval unless said invoice is paid in full. The Chief Financial Officer will promptly notify the Construction Official of any deficiency with respect to the payment of said fees. The Construction Official will not issue a certificate of occupancy or any other permit until such invoice is paid in full. |
J.
Upon request in writing, the Chief Financial Officer will provide the applicant with a statement of the escrow account and with copies of any professional fee invoices relating to the inspection of the development. The applicant may request a hearing as to the reasonableness of any of the invoices. If such request is received in writing, the hearing will be held by the Council at the next available public meeting. The failure of the applicant to protest an invoice shall not be construed to be an acknowledgment of the reasonableness of the invoice in the event the issue should arise in any later proceeding.
§ 165-167 Guarantees and inspections.
[Amended 4-27-1987 by Ord. No. 6-87; 3-11-2013 by Ord. No. 13-04; 2-11-2019 by Ord. No. 19-01]
A.
Before recording final subdivision plats or recording of minor subdivision deeds or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65, the Borough Zoning Officer, Planning Board, or Zoning Board of Adjustment may require and shall accept, in accordance with the standards adopted herein, for the purpose of assuring the installation and maintenance of certain on-tract improvements:
(1)
The furnishing of a performance guarantee in favor of the Borough in the amount equal to 120% of the cost of only those improvements required by an approval or developer's agreement, ordinance, or regulation to be dedicated to the Borough, and that have not yet been installed, which cost shall be determined by the developer and approved by the Borough Engineer, according to the method of calculation set forth in N.J.S.A. 40:55D-53.4, for the following improvements as shown on the approved plans or plat: streets, pavement, gutters, curbs, sidewalks, street lighting, street trees, surveyor's monuments, as shown on the final map and required by the "Map Filing Law," P.L. 1960, c. 141,[1] water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the proceeding improvements. The performance guarantee may also be required to include, at the discretion of the Borough Zoning Officer, Planning Board or Zoning Board of Adjustment, a guarantee for the installation of privately owned perimeter buffer landscaping. At the developer's option, a separate performance guarantee may be posted for the privately owned perimeter buffer landscaping. The developer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee for review and approval by the Borough Engineer, which improvements shall be appended to each performance guarantee posted by the obligor.
[1]
Editor's Note: See now N.J.S.A. 46:26B-1 et seq.
(2)
The developer shall post with the Borough, prior to the release of the performance guarantee, a maintenance guarantee in an amount equal to 15% of the cost of the installation of the improvements covered under the performance guarantee, along with the following private site improvements: stormwater management basins, inflow and water quality structures within the basins, and the outflow pipes and structures of the stormwater maintenance system, if any, which itemized cost shall be determined by the developer and approved by the Borough Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4. The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the end of the established term.
(3)
The furnishing of a "safety and stabilization guarantee" in favor of the Borough to ensure that the Borough has an adequate guarantee to return the property that has been disturbed to a safe and stable condition or otherwise implement measures to protect the public from access to an unsafe or unstable condition. The Borough shall be permitted to access the guarantee when site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure; and work has not recommenced within 30 days following the provision of written notice by the municipality to the developer of the municipality's intent to claim payment under the guarantee. At the developer's option, the safety and stabilization guarantee may be included as a line item for safety and stabilization in the performance guarantee rather than in the form of a separate guarantee. The amount of the safety and stabilization guarantee shall be calculated pursuant to N.J.S.A. 40:55D-53.4 as follows:
B.
The time allowed for installation of the bonded improvements for which the performance guarantee has been provided may be extended by the governing body by resolution. As a condition or part of any such extension, the amount of any performance guarantee 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 by the developer and approved by the Borough Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.
C.
If the required bonded improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable cost of the improvements not completed or corrected, and the Borough may, either prior to or after receipt of the proceeds thereof, complete such improvements.
D.
Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements and the connection of same to the public system, the obligor may notify the governing body in writing by certified mail addressed in care of the Borough Clerk of the completion or substantial completion of bonded improvements and shall send a copy thereof to the Borough Engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon the Borough Engineer shall inspect all bonded improvements of which such notice has been given and shall file a detailed report, in writing, with the governing body, indicating either approval, partial approval or rejection of such improvements with a statement of reasons for any rejection. The cost of the improvements as approved or rejected shall be set forth.
E.
Determination of governing body.
(1)
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of these bonded improvements upon the establishment in the resolution of cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee. This resolution shall be adopted no later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee with respect to those approved bonded improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the total performance guarantee and safety and stabilization guarantee posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guarantee shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction.
(2)
For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate which formed the basis of the performance guarantee and appended to the performance guarantee pursuant to Subsection A of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee and safety and stabilization guarantee to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a "temporary certificate of occupancy guarantee" has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30%.
F.
If any portion of the required improvements is rejected, the approving authority may require the obligor to complete such improvements, and, upon completion, the same procedure of notification as set forth in this section shall be followed.
G.
Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the Borough Engineer.
H.
Inspection fees.
(1)
The obligor shall reimburse the municipality for reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of the improvements which shall not exceed the sum of the amount set forth in N.J.S.A. 40:55D-53. The municipality may require the developer to post the inspection fees in escrow in an amount calculated as follows:
(a)
Except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements subject to a performance guarantee; plus
(b)
An amount not to exceed 5% of the cost of private site improvements not subject to a performance guarantee, which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4.
(2)
If the Borough determines that the amount in escrow for the payment of inspection fees, as calculated herein, is insufficient to cover the cost of additional required inspections, the Borough may require the developer to deposit additional funds in escrow, provided that the Borough delivers to the developer a written inspection escrow deposit request which informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimates the time required for those inspections, and estimates the cost of performing those inspections.
I.
In the event that final approval is by stages or sections of the development pursuant to Subsection a of Section 29 of the Municipal Land Use Law (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.
J.
Temporary certificate of occupancy.
(1)
In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a "temporary certificate of occupancy guarantee," in favor of the Borough in an amount equal to 120% of the cost of installation of only those improvements or items which remain to be completed or installed under the terms of the temporary certificate of occupancy and which are required to be installed or completed as a condition precedent to the issuance of the permanent certificate of occupancy for the development, unit, lot, building or phase of development and which are not covered by an existing performance guarantee. Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee, required pursuant to § 165-167 of the Chatham Code, which relate to the development, unit, lot building, or phase of development for which the temporary certificate of occupancy is sought shall be released.
(2)
The scope and amount of the temporary certificate of occupancy guarantee shall be determined by the Borough Zoning Officer, Borough Engineer, or any other Borough official designated by ordinance. The temporary certificate of occupancy guarantee shall be released by the Borough Zoning Officer, Borough Engineer, or any other Borough official designated by ordinance upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.
K.
If the property or any part of same is sold, or otherwise conveyed to a successor developer prior to the completion and acceptance of all improvements, an assignment of developer's agreement and new performance, maintenance or other guarantees shall be required from the new owner or successor developer. Upon the transfer of ownership of property that is the subject of a construction permit, and prior to beginning or continuing work authorized by the construction permit, the new owner or successor developer shall file with the building department an application for a permit update to notify the building department of the name and address of the new owner or successor developer and of all other changes to the information previously submitted to the building department. The building department shall not approve the application for a permit update until it receives notification from the governing body or its designee that the new owner or successor developer has furnished adequate replacement performance, maintenance or other guarantees and assignment of developer's agreement.
§ 165-168 Off-tract improvements.
A.
Improvements to be constructed at the sole expense of the subdivider or developer. In cases where the need for an off-tract improvement is created by the proposed subdivision or site plan and where no other property owners receive a special benefit thereby, the Planning Board may recommend to the governing body that it require the subdivider or developer, as a condition for subdivision or site plan approval at the subdivider's or developer's expense, to acquire lands outside of the subdivision or tract and improve and dedicate such lands to the Borough or the County, or, in lieu thereof, require the subdivider or developer to deposit with the Borough a sum of money sufficient to allow the municipality to acquire and to improve such lands.
B.
Other improvements.
(1)
In cases where the need for any off-tract improvement is created by the proposed subdivision or site plan and where the Planning Board determines that properties outside the subdivision or tract will also be benefited by the improvement, the Planning Board shall forthwith forward to the municipal governing body a list and description of all such improvements together with its request that the governing body determine and advise the Board of the procedure to be followed in the construction or installation thereof. The Planning Board shall defer final action upon the subdivision or site plan until receipt of the governing body's determination or until the expiration of 90 days after the forwarding of such list and description to the governing body without such determination having been made, whichever occurs sooner.
(2)
The governing body, within 90 days after receipt of said list and description, shall determine and advise the Planning Board whether:
(a)
The improvement or improvements are to be constructed or installed by the municipality.
[1]
As a general improvement, the cost of which is to be borne at general expense (except as hereinafter otherwise provided as to a contribution thereto by the subdivider or developer)
[2]
As a local improvement, all or part of the cost of which is to be specially assessed against properties benefited thereby in proportion to benefits conferred by the improvements in accordance with N.J.S.A. 40:56-1 et seq. (except as hereinafter otherwise provided as to a contribution thereto by the subdivider or developer).
(b)
The improvement or improvements are to be constructed or installed by the subdivider or developer under a formula for partial reimbursement as hereinafter set forth.
(3)
If the governing body shall determine that the improvement or improvements shall be constructed or installed under Subsection B(2)(a)[1] above, the Planning Board shall estimate with the aid of the Borough Engineer or such other persons as have pertinent information or expertise the amount, if any, by which the total cost thereof will exceed the total amount by which all properties, including the subdivision or tract, will be specially benefited thereby, and the subdivider or developer shall be liable to the municipality for such excess. Further, the governing body shall adopt an ordinance authorizing and providing for the financing of the improvement or improvements in a manner consistent with the obligation of the subdivider or developer for any excess of total cost over total benefits conferred, as set forth above.
(4)
If the governing body shall determine that the improvement or improvements shall be constructed or installed under Subsection B(2)(a)[2] above, the Planning Board shall, as provided in Subsection B(3) of this subsection, estimate the difference between the total costs to be incurred and the total amount by which all properties, including the subdivision property or tract, will be specially benefited by the improvement, and the subdivider or developer shall be liable to the municipality therefor, as well as for the amount of any special assessments against the subdivision property or tract for benefits conferred by the improvement or improvements. Further, the governing body shall adopt an ordinance authorizing and providing for the financing of the improvement or improvements and the assessment of benefits arising therefor in a manner consistent with the obligation of the subdivider or developer with respect thereto and proceedings under said ordinance shall be in accordance with N.J.S.A. 40:56-1 et seq., except to the extent modified by the obligation of the subdivider or developer for any excess of total costs over total benefits conferred, as set forth above.
(5)
If the governing body shall determine that the improvement or improvements are to be constructed or installed by the subdivider or developer under Subsection B(2)(b) above, the Planning Board shall in like manner estimate the amount of such excess, and the subdivider or developer shall be liable to the municipality therefor as well as for the amount of any special assessments against the subdivision property or tract for benefits conferred by the improvement or improvements. However, the subdivider or developer shall be entitled to be reimbursed by the municipality for the amount of any special assessments against property other than the subdivision property or tract for benefits conferred by the improvement or improvements, and proceedings under said ordinance shall be in accordance with N.J.S.A. 40:56-1 et seq. However, any such assessment against the subdivision property or tract shall be marked paid and satisfied in consideration of the construction or installation of the improvement or improvements by the subdivider or developer.
(6)
If the governing body shall not adopt such an ordinance or resolution within said time, the final subdivision layout or site plan shall be designed accordingly, and the Planning Board shall thereupon grant or deny final approval.
C.
Performance guarantee. The subdivider or developer shall be required to provide, as a condition for final approval of his subdivision or site plan application, a performance guarantee running to the municipality as follows:
(1)
If the improvement is to be constructed by the subdivider or developer under subsection A or under Subsection B(2)(b) of this section, a performance bond with surety in an amount equal to the estimated cost of the improvement, or as to any part of said improvement that is to be acquired or installed by the municipality under said Subsection A, a cash deposit equal to the estimated cost of such acquisition or installation by the municipality;
(2)
If the improvement is to be constructed by the municipality as a general improvement under Subsection B(2)(a)[1] of this section, a cash deposit equal to the amount of the excess of the estimated cost of the improvement over the estimated total amount by which all properties, including the subdivision property or tract, will be specially benefited thereby; and
(3)
If the improvement is to be constructed by the municipality as a local improvement under Subsection B(2)(a)[2] of this section, a cash deposit equal to the amount by which the subdivision property or tract will be specially benefited by the improvement.
D.
Refund of deposit where improvements are not authorized within five years. In any case in which a subdivider or developer shall deposit money with the municipality for the completion of an improvement that is to be constructed pursuant to this chapter by the municipality, the subdivider or developer shall be entitled to a full refund of such deposit if the governing body of the municipality shall not have enacted an ordinance authorizing the improvement within five years after the date all other improvements are completed.
E.
Deposit of funds. All moneys paid by a subdivider or developer pursuant to this Ordinance shall be deposited with the Borough of Chatham and a suitable depository shall be established for said monies. Such funds shall be used only for the improvements for which they are deposited or improvements serving the same purpose.
F.
Redetermination of assessment upon completion of improvement. Upon completion of off-tract improvements required pursuant to this section, the subdivider's or developer's liability hereunder shall be recalculated in accordance with the actual, as compared with the estimated, cost of the improvements. To the extent that it shall decrease the amount thereof, the municipality shall forthwith refund the amount of such decrease to the subdivider or developer. In cases where improvements are specially assessed against all benefited properties, recalculations shall be made by the municipal assessing authority in the course of the special assessment proceedings. In other cases, it shall be made by the Borough Engineer.
G.
Governing body approval required. All estimates required to be made by the Planning Board herein shall be reviewed and approved by the governing body to final action thereon.