Clayton City Zoning Code

ARTICLE X

Fees, Guarantees and Off-Tract Improvements

§ 88-84 Fees.

Nonrefundable application fees. Each applicant who files an application before the Borough of Clayton Planning Board shall pay the applicable application fee listed below for such application. The application fee provided for herein shall be nonrefundable and is required for purposes of offsetting the administrative and clerical costs of operating the Planning Board and for costs which may be incurred by the Planning Board in the normal processing of such applications (exclusive of the legal, planning, engineering and other professional services deemed necessary by the Planning Board).

Creation of escrow accounts.

In addition to the nonrefundable application fees referred to above, each applicant before the Planning Board shall establish and make the required payments to an escrow account to be maintained by the Borough for the purpose of providing sufficient moneys to pay the costs of review by professionals engaged by the Planning Board.

Upon submitting an application for development to the Planning Board, the applicant shall be required to deposit with the Secretary of the Planning Board the sums hereinafter provided and execute an escrow agreement requiring the applicant to pay all necessary and reasonable costs incurred by the Borough for technical and professional review by the approving authority. The escrow agreement shall be in a form approved by the Borough Council. The amounts specified below to be placed in escrow are estimates of professional fees only and should not be considered as a minimum or maximum fee which may be required of the applicant to compensate the Borough for legal, engineering, traffic engineering, planning or other professional services. Said fees must be paid prior to the Board certifying the application as complete; provided, however, that payment of the fee in and of itself shall not be deemed as making the application complete.

In the event that the amounts required to be posted by this section are not sufficient to cover the professional charges incurred by the Borough of Clayton for such application, then the applicant shall pay the amount required which is over and above the funds previously collected and shall not receive any approvals or other permits from the Borough before such fees are paid in full.

In the event the amounts posted as fees shall be in excess of the amount required for all professional review, the excess funds shall be returned to the applicant within 30 days of the issuance of a certificate of occupancy for the project which the application fee covers.

The Board Secretary shall periodically advise the Board Chairperson of the balance of all escrow accounts and whether additional funds are required as provided for hereinafter. In the event additional funds are required, the Board Chairperson or Secretary shall notify the applicant of the amounts required as additional fees. In the event the applicant refuses or fails to make the payments required within 10 days of demand, the Board Secretary shall notify the approving authority. If the additional fees are not paid, the Planning Board may deny the application before it, and no other permits or certificates shall be issued by the Borough to the applicant for the applicable project until payment is made in full. In the event additional fees are required, the applicant shall pay such fees to the Borough in accordance with the same agreement already entered into or under any additional terms which may be agreed to by the applicant and the approving authority.

Before issuing a zoning permit prior to construction or prior to occupancy for any element of a project, the applicable code official for the Borough of Clayton shall first determine from the Board Secretary whether there are sufficient escrow funds to pay all pending or reasonably anticipated bills attributable for professional review to the particular project. The applicable code officer shall not issue the requested construction permit or certificate of occupancy until the amounts which are due or necessary to provide sufficient funds in escrow to pay such pending or reasonably anticipated bills are paid in full by the applicant.

Fees and escrows. The following is a schedule of fees to be paid by the applicant upon filing an application:

[Amended 12-27-2012 by Ord. No. 15-2012; 10-28-2021 by Ord. No. 17-2021; 12-9-2021 by Ord. No. 27-2021]

Development Review Committee conceptual: major subdivision or site plan.

Application fee: $200.

Professionals escrow: $1,000.

Minor subdivision: resubdivision or lot line adjustment.

Application fee:

Residential: $250.

Commercial: $1,000.

Professionals escrow:

Residential: $500.

Commercial: $2,000.

Major subdivision: preliminary and/or final.

Application fee:

Residential: $750.

Commercial: $1,500.

Professionals escrow:

Residential: $1,500 < five acres; $3,000 > five acres.

Commercial: $3,000 < five acres; $5,000 > five acres.

Major subdivision: amended.

Application fee: $300.

Professionals fee: $500 plus $50 per lot.

Site plan waiver.

Application fee: $250.

Professionals fee: $750.

Minor site plan.

Application fee: $250.

Professionals fee: $1,500.

Major site plan: preliminary.

Application fee: $300 plus $50 per acre.

Professionals fee: $2,000 plus $200 per acre.

Major site plan: final.

Application fee: $300.

Professionals fee: $2,000 plus $100 per acre.

Major site plan: amended.

Application fee: $300.

Professionals fee: $1,000 plus $50 per acre.

Use variance (applications made under N.J.S.A. 40:55D-70d).

Application fee: $250.

Professionals fee.

Residential: $1,000.

Commercial: $2,000.

Bulk variance (applications made under N.J.S.A. 40:55D-70c).

Application fee: $150.

Professionals fee.

Residential: $500.

Commercial: $750.

Appeals (applications made under N.J.S.A. 40:55D-70a).

Application fee: $150.

Professionals fee: $500.

Interpretations (applications made under N.J.S.A. 40:55D-70b).

Application fee: $100.

Professionals fee: $350.

Conditional use (if subdivision or site plan approval is needed, the fees for the appropriate application shall be charged in addition to the following).

Application fee: $150.

Professionals fee.

Residential: $500.

Commercial: $750.

Environmental consultant review.

Escrow fee: $2,500.

Zoning permit application.

Application fee: $35.

Certificate of nonconformity.

Application fee: $35.

Copies of minutes and other documents: per the Open Public Records Act (OPRA).[1]

Editor's Note: See N.J.S.A. 47:1A-1 et seq.

Professional fees. The engineering, traffic engineering, legal and planning escrows as set forth in the aforesaid provisions are minimum amounts representing an estimate of the anticipated costs for such services based on the hourly rates of the respective professional. The hourly rates to be charged each applicant for the services of such professionals shall be the same as those set forth in the contracts between the Borough and said professionals. These fees may need to be replenished as the application proceeds through the Board and until completion of the project. This is the minimum escrow to be maintained until project is deemed completed.

[Amended 12-9-2021 by Ord. No. 27-2021]

§ 88-85 Improvement and maintenance guarantees.

[Amended 5-10-2018 by Ord. No. 9-2018; 11-14-2019 by Ord. No. 21-2019]

Required guarantees; surety. In accordance with N.J.S.A. 40:55D-53.4, for the purpose of assuring the installation and maintenance of bondable land development improvements, as a conditioned of all final site plan, subdivision, and/or zoning permit approvals, the Board or Zoning Officer, as appropriate, shall require, and the Borough Council shall accept the following guarantees:

Performance guarantees.

The furnishing of a performance guarantee in favor of the Borough in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval or developer's agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed 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;, water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements. The performance guarantee shall also cover the cost for privately owned perimeter buffer landscaping in an approved phase or section of a development, either as a separate guarantee or as a line item of the performance guarantee.

The cost of the improvements covered by the performance guarantee shall be determined by the Borough Engineer.

The Borough Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

An approved stormwater operations and maintenance (O&M) manual and deed restrictions in accordance with the requirements for major stormwater development, if applicable, in accordance with Art. XII. The O&M manual and deed restrictions shall have been recorded at the county Clerk's office prior to acceptance of any performance guarantee or release of plans for construction or plats for recording.

[Added 10-28-2021 by Ord. No. 17-2021]

Maintenance guarantee.

In accordance with N.J.S.A. 40:55D-53.4a(2), the developer shall post with the municipality a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any, which cost shall be determined by the Municipal Engineer. Additionally, in accordance with N.J.S.A. 40:55D-53.4a(2) a maintenance guarantee is required for any items on the performance bond associated with improvements being dedicated to the municipality if any, which cost shall be determined by the Municipal Engineer.

The maintenance guarantee shall be furnished upon the inspection and issuance of final approval of the applicable private site improvements by the Municipal Engineer.

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.

Temporary certificate of occupancy guarantee.

Pursuant to N.J.S.A. 40:55D-53(1)(c), a developer shall furnish a temporary certificate of occupancy guarantee (TCOG) whenever the developer seeks a temporary certificate of occupancy for a development, unit, lot, building, or phase of development. The TCOG shall be furnished in favor of the municipality in an amount equal to 120% of the cost of installation of any improvements which remain to be completed or installed under the terms of the temporary certificate of occupancy; are required to be completed or installed as a condition precedent to the issuance of a permanent certification of occupancy; and are not covered by an existing performance guarantee.

The scope and amount of the TCOG shall be determined by the Municipal Engineer.

The TCOG shall be released upon the issuance of a permanent certificate of occupancy as issued and determined by the Borough Engineer and Construction Code Official.

Safety and stabilization guarantee.

Pursuant to NJSA 40:55D-53(1)(d), a developer shall furnish a safety and stabilization guarantee (SSG) in favor of the municipality, either as a separate guarantee or as a line item of the performance guarantee.

The amount of the SSG for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000. The amount of the SSG for a development with bonded improvements exceeding $100,000 shall be calculated as a percentage of the bonded improvement costs of the development or phase of development as follows:

$5,000 for the first $100,000 of bonded improvement costs, plus 2.5% of bonded improvement costs in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement costs in excess of $1,000,000.

The municipality shall release a separate SSG to a developer upon the developer's furnishing of a performance guarantee which includes a line item for safety and stabilization in the amount required pursuant to this chapter.

A SSG shall be available the municipality for the purpose of returning property that has been disturbed to a safe and stable condition, or taking other measures to protect the public from access to an unsafe or unstable condition. An SSG shall only be available to the municipality 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. A municipality shall not provide notice of its intent to claim payment under a SSG until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. A municipality shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.

The municipality shall release a SSG upon the Municipal Engineer's determination that the development of the project site has reached a point that the improvements installed are adequate to avoid any potential threat to public safety.

Other governmental agencies. In the event that other governmental agencies or public utilities will automatically own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Borough for such utilities or improvements.

Borough Solicitor review. The performance, maintenance, TCOG and SSG guarantees must be reviewed by the Borough Solicitor to confirm that they are issued satisfactory as to form, sufficiency, and execution and they meet all statutory requirements. After review and approval of the Borough Solicitor all guarantees must be posted in original form with the Borough Clerk prior to the Planning Board Chair's and Secretary's signature of any site plan, subdivision plat or minor subdivision deed, and prior to issuance of any zoning, building or other permit or certificate.

Default; reductions and release. If the required improvements are not completed or corrected in accordance with the performance guarantee, the developer and surety, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected and the municipality may either prior to or after the receipt of the proceeds thereof complete such improvements. Such compilation or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.). Otherwise, the guarantees will be subject to reduction and release as provided in N.J.S.A. 40:55D-53.

Request for list of uncompleted or unsatisfactory completed improvements. Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of the same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer and appended to the performance guarantee pursuant to this section, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Municipal Engineer shall inspect all bonded improvements covered by obligor's request that shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request. The list prepared by the Municipal Engineer shall state, in detail, with respect to each bonded improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent or, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Municipal Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to this section.

Action by governing body. The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Municipal Engineer, or reject any or all of these 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 and the "safety and stabilization bond" relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to this section. This resolution shall be adopted not later 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee and "safety and stabilization bond," 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 bond," the amount of the performance guarantee and "safety and stabilization bond" attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer 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 bond" to ensure completion and acceptability of all improvements, as provided above, except that any amount of the performance guarantee even if such release would reduce the amount held by the municipality below 30%. If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification, as set forth in this section shall be followed.

Inspections and tests.

All improvements and utility installations shall be inspected during the time of their installation under the supervision of the Borough Engineer to ensure satisfactory completion. The cost of said inspection shall be the responsibility of the applicant, and he or she shall deposit with the Planning Board Secretary for placement in an escrow account an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the amount of the performance guarantee estimate of the cost of improvements pursuant to this chapter. The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements. For those developments for which the reasonably anticipated fees are $10,000 or greater, the 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 anticipated fees. When the balance on deposit drops to 10% of the anticipated fees because of payments to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for such inspection are not on deposit.

In no case shall any paving work be done without permission from the Borough Engineer's office. At least 48 hours' notice shall be given to the Borough Engineer's office prior to any such construction so that he or a qualified representative may be present at the time the work is to be done.

The Borough Engineer's office shall be notified 48 hours in advance of any work being done so that he or a qualified representative may inspect the work.

Any improvement installed without notice for inspection pursuant to Subsection G(3) above shall constitute just cause for:

Removal of the uninspected improvement;

The payment by the developer of any costs for material testing;

The restoration by the developer of any improvements disturbed during any material testing; and/or

The issuance of a stop-work order by the Borough Engineer pending the resolution of any dispute.

A final inspection of all improvements and utilities will be done by the Borough Engineer to determine whether the work is satisfactory and in agreement with the approved final plan drawings and Borough specifications. The general condition of the site shall also be considered. Upon a satisfactory final inspection report, action will be taken to release or declare in default the performance guarantee covering such improvements and utilities.

Inspection by the Borough of the installation of improvements and utilities by the applicant shall not subject the Borough to liability for claims, suits or any other liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter; it is recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the applicant and his contractors, if any.

Engineering inspection fees. The obligor shall reimburse the municipality for reasonable inspection fees paid to the Municipal Engineer for the foregoing inspection of improvements: which fees shall not exceed the sum of the amounts set forth in Subsection H(1) and (2) of this subsection. The developer shall post the inspection fees in escrow in an amount:

Not to exceed 5% of the cost of bonded improvements that are subject to a performance guarantee under § 88-85A; and

Not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee under § 88-85A, which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4.

Installments. For those developments for which the inspection fees total less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees. For those developments for which the inspection fees total $10,000 or greater, fees may, at the option of the developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.

Request for additional deposit. If the municipality determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsections H(1) and (2) of this subsection, is insufficient to cover the cost of additional funds in escrow provided that the municipality delivers to the developer a written inspection escrow deposit request, signed by the Municipal Engineer, which: informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimate the time required for those inspections, and estimates the cost of performing those inspections.

Applicability of amendments not codified in this section. Any and all amendments made to N.J.S.A. 40:55D-53 et al. that have not been codified in this section shall be deemed incorporated herein.

Applicability to existing projects. The modifications in this section shall be applicable to all projects that have not yet received final approvals from the Borough Planning Board or the Borough Zoning Board of Adjustment and/or which have not posted bonds and begun construction of required improvements as of January 16, 2018, the date of enactment of P.L. 2017, c.312, which obviated the Borough's previously lawful ordinances.

§ 88-86 Off-tract improvements.

[Added 10-27-2005 by Ord. No. 18-2005[1]]

Purpose. As a condition of subdivision or site plan approval, and in accordance with N.J.S.A. 40:55D-42, the Planning Board (the "Board") shall require a developer/applicant to pay its pro rata share of the cost of providing reasonable and necessary improvements to the Borough's water, streets/street signalization, drainage, and sewer facilities, including land and easements, that are located off tract of the proposed subdivision or development but which are necessitated or required as a direct result of the impact that the subdivision or development will have upon the Borough. All such off-tract water, streets/street signalization, drainage and sewer improvements shall be in conformance with the circulation and comprehensive utility service plans of the Borough's Master Plan. Such improvements are those that are clearly, directly and/or substantially related to the subdivision or development under review, as further determined based on the provisions, calculations and methodologies being further set forth herein.

Cost allocation.

Full allocation. In cases where off-tract improvements are necessitated by the proposed development, and where no property owners receive a special benefit thereby, or where neither the Borough nor any other government entity has either planned, programmed, or accepted responsibility for any portion of the cost of the improvements, the developer/applicant shall be responsible, at the developer/applicant's sole expense and as a condition of approval, to either provide for and install such improvements, upon proper review and approval by the Borough of all such plans related to the same, or to provide for the necessary funding so that the Borough can make such improvements directly.

Proportionate allocation. When it is determined that properties outside the development will also be benefited by the off-tract improvements, or where either the Borough or other governmental agency or entity has planned or programmed or accepted responsibility for any portion of the cost of the improvement, the criteria set forth herein shall be utilized in calculating and determining the proportionate share of the cost of such improvements to the developer/applicant. A proportionate allocation shall not be made, however, and a developer/applicant shall be responsible for assuming all costs for improvements where there is a need to upgrade an existing facility or improvement due to its insufficient capacity, or other inadequacies, to service the needs of the developer/applicant's proposed development, but the existing facility or improvement is adequate to service the needs of the present users. Where a developer is required to "front end" an off-tract improvement (such as the extension of a sewer line to the proposed development), and future developers benefit from the same, then the original developer who made the improvement shall be entitled to a pro rata reimbursement from any subsequent developers who have directly benefited from the improvement, if said subsequent benefit accrues within 10 years from the date of the original improvement. In any such event, the following procedure shall take place:

The original developer shall certify the actual costs of the off-tract improvements, based on construction invoices, which shall then be verified by the Borough's Engineer.

The Borough Engineer shall then calculate the subsequent developer's pro rata contribution by dividing the use of the improvement by the subsequent developer by the use of the improvement made by all developments benefiting from the improvement, based on road capacity, daily sewage flow, daily water flow, etc.

The Borough shall then condition the issuance of the first building permit in the subsequent developer's development upon payment in full of the pro rata reimbursement to the original developer. Said reimbursement shall be payable to the Borough directly, which shall then reimburse the original developer, subject to payment of any liens, offsets or other funds due to the Borough by the original developer.

Alternate methods. Nothing herein shall be construed as to prevent the Board and the developer/applicant from agreeing to use an alternate method to allocate costs, or to use an alternate method to make the payments for pro rata reimbursements, then that which is set forth herein, given the unique and distinguishable characteristics of each application for development, as long as such alternate method is based on fair and reasonable standards, and the reason for adopting such alternate method is clearly set forth and agreed to by both the Board and the developer/applicant.

Off-tract water improvements. The developer/applicant's share of water distribution, supply, treatment, and storage facilities, including the installation, relocation or replacement of water mains, hydrants, valves, and appurtenances associated therewith, shall be computed as follows:

The capacity and design of the water supply system shall be based on standards computed by the developer's engineer and approved by the Planning Board's and/or the Borough's Engineer.

The Planning Board and/or Borough Engineer shall provide the developer/applicant with the existing and reasonably anticipated peak-hour flows as well as capacity limits for the affected water system in terms of average demand, peak demand and fire demand.

If the required system does not exist, or the existing system does not have adequate capacity to accommodate the developer/applicant's flow given existing and reasonably anticipated peak hour and fire flows, the pro rata share shall be computed to the larger of:

The partial cost of a shared improvement where none now exists:

Total cost of improvement

Developer/applicant's cost

=

Capacity of improvement [gallons per day (GPD)]

Development-generated design flow to be accommodated by the improvement (GPD)

The total cost of an improvement designed to accommodate only the development flow, if such an alternative is technically feasible; or

The full cost to upgrade an existing facility or improvements where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the needs of the developer/applicant, but is adequate to service the needs of the present users.

Off-tract roadway/signalization improvements.

Roadways/signalization. The developer/applicant's proportionate share of street improvements, alignments, channelization, barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements uncovered elsewhere, the construction or reconstruction of new or existing streets, and other associated street or traffic improvements shall be as follows:

Traffic study. A traffic impact study ("study") shall be provided by the developer/applicant as set forth in the Board's application submission requirements. The study shall address the various traffic-generating characteristics of uses in the proposed development and the interface of traffic from uses associated with the proposed development and existing uses in the area, to assure that there will not be a degradation in the level of service in the area and that there will not be any traffic hazards created in the area by traffic generated as a direct result of the development.

Level of service. The developer/applicant must demonstrate that the existing public traffic arteries have adequate capacities to accommodate the traffic to be generated by the proposed project at an acceptable level of service of D or better and that safe, convenient and adequate circulation and parking are provided for on site of the proposed development.

Traffic volumes. The developer/applicant must provide, as a part of its submitted study, existing twenty-four-hour traffic counts for a minimum of three different days, excluding Sundays and holidays, summarized by hour and by direction, and peak-hours trips by movement on all critical off-tract arterial roadways and intersections affected by the proposed development. Traffic volumes utilized in the study shall be taken within 12 months preceding the date that the application is filed with the Borough's Planning Board and be taken between the period of September 1 through June 15, excluding those days wherein inclement weather would make such counts not typical. If there is a seasonal peak, the study shall take the same into account and make appropriate comments.

Future background traffic volume. Future traffic volumes shall be calculated by multiplying the peak hour traffic volumes utilizing the current New Jersey Department of Transportation (NJDOT) growth factors. These factored traffic volumes will be surcharged with traffic volumes expected to be generated by implementing development in the area, based on development projects presently approved by, or pending before, the Borough's Planning Board and known projects presently approved by or pending before the planning boards of immediately adjacent municipalities which will clearly have an impact on local traffic.

Traffic generation. Traffic expected to be generated by the proposed development shall be calculated by utilizing the latest copy of the Institute of Transportation Engineers (ITE) text: Trip Generation. The values developed by using the Trip Generation method shall be verified by typical counts when requested by the Borough to verify results. If the Borough requires trip generation data because the Trip Generation methodology is not accurate due to local conditions or an inadequate database in the Trip Generation text, the traffic data counts required to verify Trip Generation data shall be in the ITE format. Traffic generation shall include the amount of traffic to be generated for the projected twenty-four-hour period and during the peak-hour trip generation by the proposed project.

Future build traffic volumes. Future background traffic volumes shall be surcharged by adding the traffic volumes that are to be generated by the proposed development to future background traffic volumes.

Traffic analysis.

Capacity analysis. Roadways and intersections shall be analyzed using a capacity analysis. The capacity analysis will utilize the latest approved highway capacity programs. Traffic shall be analyzed for the existing traffic conditions, future traffic conditions, and future build traffic conditions. Traffic analysis shall optimize traffic signals so that the existing traffic conditions show traffic conditions as they exist and with the optimization of traffic signal timing. The future background traffic conditions shall require the optimization of the traffic on the roadways. Future traffic shall be added and the traffic signal timings shall be optimized for a final product.

Accident analysis. Accident data of critical intersections and roadways shall be analyzed.

Speed and delay analysis. Speed and delay analysis of critical roadways shall be provided.

Gap analysis. Gap studies of critical intersections shall be provided.

Safety analysis. Analysis shall be made of all entrances and exits to determine if left-turn lanes are warranted in accordance with Highway Research Record 211. In addition, deceleration and acceleration lanes shall be analyzed to determine if they are needed.

Off-tract contributions.

The developer/applicant's traffic consultant shall provide a trip distribution that will distribute traffic to the surrounding roadway system. All intersections that have over 25 p.m. peak-hour trips shall be tabulated and listed with the amount of traffic from the proposed development and the total build traffic at that location. The developer/applicant's engineer shall show the percent of the p.m. traffic that the applicant's traffic will be of the future build traffic at each intersection by approach. If improvements are required on one approach of an intersection only, as a result of a significant impact from the development, defined as an approach where the majority of traffic on the approach (further defined as over 50% of the total traffic build) caused the need for the proposed improvement on that approach to maintain an adequate level of service, the developer/applicant's pro rata share of the intersection improvements shall be calculated as set forth below.

If the required improvements to accommodate the proposed development do not exist, or the existing system does not have adequate capacity to accommodate the anticipated volumes as set forth in the study, the pro rata share shall be the larger of:

The partial cost of a shared improvement where none exists:

Total cost of improvement

Developer/ applicant's cost

=

Capacity of improvement (peak hour volume)

Developer traffic to be accommodated by the enlargement or improvement (peak-hour volume)

The total cost of an improvement designed to accommodate only the development traffic volume if such an alternative is technically possible; or

The full cost to upgrade an existing facility or improvement where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the needs of the developer/applicant, but is adequate to service the needs of present users.

Off-tract drainage improvements. The applicant's proportionate share of stormwater and drainage improvements, including the installation, relocation and replacement of storm drains, bridges, culverts, catch basins, manholes, riprap, detention or retention basins, improved drainage ditches and appurtenances thereto, and relocation or replacement of other storm drainage facilities or appurtenances associated therewith, shall be determined as follows:

The capacity and the design of the drainage to accommodate stormwater runoff shall be based on standards set forth in Article V of this chapter, computed by the developer/applicant's engineer and approved by the Borough Planning Board's and/or the Borough's Engineer.

The capacity of the enlarged, extended or improved system required for the subdivision and areas outside of the developer/applicant's tributary to the drainage system shall be determined by the developer/applicant's engineer, subject to the approval of the Board's and/or Borough's Engineer. The plans for the improved system may be prepared by the developer/applicant's engineer, or the Board's or Borough's Engineer, at the developer/applicant's expense, and the estimated cost of the enlarged system shall be calculated by the Board's and/or Borough's Engineer.

If the required improvements do not exist, or if the existing system does not have adequate capacity to accommodate reasonably anticipated volumes, the pro rata share shall be the larger of:

The partial cost of a share improvement where none now exists:

Total cost of improvement

Developer/ applicant's cost

=

Capacity of improvement (cfs - peak 25-year storm)

Development-generated peak by the enlargement or improvement (cfs - peak 25-year storm)

The total cost of an improvement designed to accommodate only the development flow, if such an alternative is technically possible; or

The full cost to update an existing facility or improvement where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the needs of the developer/applicant, but is adequate to service the needs of the present users:

Off-tract sewer improvements.

The capacity and design of sanitary sewer systems shall be based on Rules and Regulations for the Preparation and Submission for Sewerage Systems, New Jersey Department of Environmental Protection, as well as any and all other design and specifications standards as may be set forth by the Borough of Clayton and/or its professionals responsible for approval and oversight of such systems.

The developer/applicant shall be responsible for the entire cost of any off-tract improvements for sanitary sewer systems, including distribution facilities, the installation, relocation or replacement of collector, trunk and interceptor sewers, and the installation, relocation or replacement of other appurtenances associated therewith, that are necessary as a direct result of the proposed development. This shall apply both to the need for any new systems, facilities, appurtenances, etc., as well as the cost to upgrade an existing facility or improvement where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the ends of the developer/applicant's proposed development, but is adequate to service the needs of the present users.

In the event that a new system and/or facilities or appurtenances associated therewith is/are necessary where none now exist, but said new system and/or facilities or appurtenances associated therewith will be shared with other users who do not now benefit from the same, the developer/applicant's partial cost of said shared improvement shall be as follows:

Total cost of improvement

Developer/ applicant's cost

=

Capacity of improvement [gallons per day (GPD)]

Developer/applicant-generated flow to be accommodated by the improvement (GPD)

Editor's Note: This ordinance also repealed former § 86, Off-tract improvements.

Clayton City Zoning Code

ARTICLE X

Fees, Guarantees and Off-Tract Improvements

§ 88-84 Fees.

Nonrefundable application fees. Each applicant who files an application before the Borough of Clayton Planning Board shall pay the applicable application fee listed below for such application. The application fee provided for herein shall be nonrefundable and is required for purposes of offsetting the administrative and clerical costs of operating the Planning Board and for costs which may be incurred by the Planning Board in the normal processing of such applications (exclusive of the legal, planning, engineering and other professional services deemed necessary by the Planning Board).

Creation of escrow accounts.

In addition to the nonrefundable application fees referred to above, each applicant before the Planning Board shall establish and make the required payments to an escrow account to be maintained by the Borough for the purpose of providing sufficient moneys to pay the costs of review by professionals engaged by the Planning Board.

Upon submitting an application for development to the Planning Board, the applicant shall be required to deposit with the Secretary of the Planning Board the sums hereinafter provided and execute an escrow agreement requiring the applicant to pay all necessary and reasonable costs incurred by the Borough for technical and professional review by the approving authority. The escrow agreement shall be in a form approved by the Borough Council. The amounts specified below to be placed in escrow are estimates of professional fees only and should not be considered as a minimum or maximum fee which may be required of the applicant to compensate the Borough for legal, engineering, traffic engineering, planning or other professional services. Said fees must be paid prior to the Board certifying the application as complete; provided, however, that payment of the fee in and of itself shall not be deemed as making the application complete.

In the event that the amounts required to be posted by this section are not sufficient to cover the professional charges incurred by the Borough of Clayton for such application, then the applicant shall pay the amount required which is over and above the funds previously collected and shall not receive any approvals or other permits from the Borough before such fees are paid in full.

In the event the amounts posted as fees shall be in excess of the amount required for all professional review, the excess funds shall be returned to the applicant within 30 days of the issuance of a certificate of occupancy for the project which the application fee covers.

The Board Secretary shall periodically advise the Board Chairperson of the balance of all escrow accounts and whether additional funds are required as provided for hereinafter. In the event additional funds are required, the Board Chairperson or Secretary shall notify the applicant of the amounts required as additional fees. In the event the applicant refuses or fails to make the payments required within 10 days of demand, the Board Secretary shall notify the approving authority. If the additional fees are not paid, the Planning Board may deny the application before it, and no other permits or certificates shall be issued by the Borough to the applicant for the applicable project until payment is made in full. In the event additional fees are required, the applicant shall pay such fees to the Borough in accordance with the same agreement already entered into or under any additional terms which may be agreed to by the applicant and the approving authority.

Before issuing a zoning permit prior to construction or prior to occupancy for any element of a project, the applicable code official for the Borough of Clayton shall first determine from the Board Secretary whether there are sufficient escrow funds to pay all pending or reasonably anticipated bills attributable for professional review to the particular project. The applicable code officer shall not issue the requested construction permit or certificate of occupancy until the amounts which are due or necessary to provide sufficient funds in escrow to pay such pending or reasonably anticipated bills are paid in full by the applicant.

Fees and escrows. The following is a schedule of fees to be paid by the applicant upon filing an application:

[Amended 12-27-2012 by Ord. No. 15-2012; 10-28-2021 by Ord. No. 17-2021; 12-9-2021 by Ord. No. 27-2021]

Development Review Committee conceptual: major subdivision or site plan.

Application fee: $200.

Professionals escrow: $1,000.

Minor subdivision: resubdivision or lot line adjustment.

Application fee:

Residential: $250.

Commercial: $1,000.

Professionals escrow:

Residential: $500.

Commercial: $2,000.

Major subdivision: preliminary and/or final.

Application fee:

Residential: $750.

Commercial: $1,500.

Professionals escrow:

Residential: $1,500 < five acres; $3,000 > five acres.

Commercial: $3,000 < five acres; $5,000 > five acres.

Major subdivision: amended.

Application fee: $300.

Professionals fee: $500 plus $50 per lot.

Site plan waiver.

Application fee: $250.

Professionals fee: $750.

Minor site plan.

Application fee: $250.

Professionals fee: $1,500.

Major site plan: preliminary.

Application fee: $300 plus $50 per acre.

Professionals fee: $2,000 plus $200 per acre.

Major site plan: final.

Application fee: $300.

Professionals fee: $2,000 plus $100 per acre.

Major site plan: amended.

Application fee: $300.

Professionals fee: $1,000 plus $50 per acre.

Use variance (applications made under N.J.S.A. 40:55D-70d).

Application fee: $250.

Professionals fee.

Residential: $1,000.

Commercial: $2,000.

Bulk variance (applications made under N.J.S.A. 40:55D-70c).

Application fee: $150.

Professionals fee.

Residential: $500.

Commercial: $750.

Appeals (applications made under N.J.S.A. 40:55D-70a).

Application fee: $150.

Professionals fee: $500.

Interpretations (applications made under N.J.S.A. 40:55D-70b).

Application fee: $100.

Professionals fee: $350.

Conditional use (if subdivision or site plan approval is needed, the fees for the appropriate application shall be charged in addition to the following).

Application fee: $150.

Professionals fee.

Residential: $500.

Commercial: $750.

Environmental consultant review.

Escrow fee: $2,500.

Zoning permit application.

Application fee: $35.

Certificate of nonconformity.

Application fee: $35.

Copies of minutes and other documents: per the Open Public Records Act (OPRA).[1]

Editor's Note: See N.J.S.A. 47:1A-1 et seq.

Professional fees. The engineering, traffic engineering, legal and planning escrows as set forth in the aforesaid provisions are minimum amounts representing an estimate of the anticipated costs for such services based on the hourly rates of the respective professional. The hourly rates to be charged each applicant for the services of such professionals shall be the same as those set forth in the contracts between the Borough and said professionals. These fees may need to be replenished as the application proceeds through the Board and until completion of the project. This is the minimum escrow to be maintained until project is deemed completed.

[Amended 12-9-2021 by Ord. No. 27-2021]

§ 88-85 Improvement and maintenance guarantees.

[Amended 5-10-2018 by Ord. No. 9-2018; 11-14-2019 by Ord. No. 21-2019]

Required guarantees; surety. In accordance with N.J.S.A. 40:55D-53.4, for the purpose of assuring the installation and maintenance of bondable land development improvements, as a conditioned of all final site plan, subdivision, and/or zoning permit approvals, the Board or Zoning Officer, as appropriate, shall require, and the Borough Council shall accept the following guarantees:

Performance guarantees.

The furnishing of a performance guarantee in favor of the Borough in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval or developer's agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed 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;, water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements. The performance guarantee shall also cover the cost for privately owned perimeter buffer landscaping in an approved phase or section of a development, either as a separate guarantee or as a line item of the performance guarantee.

The cost of the improvements covered by the performance guarantee shall be determined by the Borough Engineer.

The Borough Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

An approved stormwater operations and maintenance (O&M) manual and deed restrictions in accordance with the requirements for major stormwater development, if applicable, in accordance with Art. XII. The O&M manual and deed restrictions shall have been recorded at the county Clerk's office prior to acceptance of any performance guarantee or release of plans for construction or plats for recording.

[Added 10-28-2021 by Ord. No. 17-2021]

Maintenance guarantee.

In accordance with N.J.S.A. 40:55D-53.4a(2), the developer shall post with the municipality a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any, which cost shall be determined by the Municipal Engineer. Additionally, in accordance with N.J.S.A. 40:55D-53.4a(2) a maintenance guarantee is required for any items on the performance bond associated with improvements being dedicated to the municipality if any, which cost shall be determined by the Municipal Engineer.

The maintenance guarantee shall be furnished upon the inspection and issuance of final approval of the applicable private site improvements by the Municipal Engineer.

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.

Temporary certificate of occupancy guarantee.

Pursuant to N.J.S.A. 40:55D-53(1)(c), a developer shall furnish a temporary certificate of occupancy guarantee (TCOG) whenever the developer seeks a temporary certificate of occupancy for a development, unit, lot, building, or phase of development. The TCOG shall be furnished in favor of the municipality in an amount equal to 120% of the cost of installation of any improvements which remain to be completed or installed under the terms of the temporary certificate of occupancy; are required to be completed or installed as a condition precedent to the issuance of a permanent certification of occupancy; and are not covered by an existing performance guarantee.

The scope and amount of the TCOG shall be determined by the Municipal Engineer.

The TCOG shall be released upon the issuance of a permanent certificate of occupancy as issued and determined by the Borough Engineer and Construction Code Official.

Safety and stabilization guarantee.

Pursuant to NJSA 40:55D-53(1)(d), a developer shall furnish a safety and stabilization guarantee (SSG) in favor of the municipality, either as a separate guarantee or as a line item of the performance guarantee.

The amount of the SSG for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000. The amount of the SSG for a development with bonded improvements exceeding $100,000 shall be calculated as a percentage of the bonded improvement costs of the development or phase of development as follows:

$5,000 for the first $100,000 of bonded improvement costs, plus 2.5% of bonded improvement costs in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement costs in excess of $1,000,000.

The municipality shall release a separate SSG to a developer upon the developer's furnishing of a performance guarantee which includes a line item for safety and stabilization in the amount required pursuant to this chapter.

A SSG shall be available the municipality for the purpose of returning property that has been disturbed to a safe and stable condition, or taking other measures to protect the public from access to an unsafe or unstable condition. An SSG shall only be available to the municipality 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. A municipality shall not provide notice of its intent to claim payment under a SSG until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. A municipality shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.

The municipality shall release a SSG upon the Municipal Engineer's determination that the development of the project site has reached a point that the improvements installed are adequate to avoid any potential threat to public safety.

Other governmental agencies. In the event that other governmental agencies or public utilities will automatically own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Borough for such utilities or improvements.

Borough Solicitor review. The performance, maintenance, TCOG and SSG guarantees must be reviewed by the Borough Solicitor to confirm that they are issued satisfactory as to form, sufficiency, and execution and they meet all statutory requirements. After review and approval of the Borough Solicitor all guarantees must be posted in original form with the Borough Clerk prior to the Planning Board Chair's and Secretary's signature of any site plan, subdivision plat or minor subdivision deed, and prior to issuance of any zoning, building or other permit or certificate.

Default; reductions and release. If the required improvements are not completed or corrected in accordance with the performance guarantee, the developer and surety, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected and the municipality may either prior to or after the receipt of the proceeds thereof complete such improvements. Such compilation or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.). Otherwise, the guarantees will be subject to reduction and release as provided in N.J.S.A. 40:55D-53.

Request for list of uncompleted or unsatisfactory completed improvements. Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of the same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer and appended to the performance guarantee pursuant to this section, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Municipal Engineer shall inspect all bonded improvements covered by obligor's request that shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request. The list prepared by the Municipal Engineer shall state, in detail, with respect to each bonded improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent or, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Municipal Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to this section.

Action by governing body. The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Municipal Engineer, or reject any or all of these 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 and the "safety and stabilization bond" relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to this section. This resolution shall be adopted not later 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee and "safety and stabilization bond," 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 bond," the amount of the performance guarantee and "safety and stabilization bond" attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer 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 bond" to ensure completion and acceptability of all improvements, as provided above, except that any amount of the performance guarantee even if such release would reduce the amount held by the municipality below 30%. If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification, as set forth in this section shall be followed.

Inspections and tests.

All improvements and utility installations shall be inspected during the time of their installation under the supervision of the Borough Engineer to ensure satisfactory completion. The cost of said inspection shall be the responsibility of the applicant, and he or she shall deposit with the Planning Board Secretary for placement in an escrow account an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the amount of the performance guarantee estimate of the cost of improvements pursuant to this chapter. The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements. For those developments for which the reasonably anticipated fees are $10,000 or greater, the 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 anticipated fees. When the balance on deposit drops to 10% of the anticipated fees because of payments to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for such inspection are not on deposit.

In no case shall any paving work be done without permission from the Borough Engineer's office. At least 48 hours' notice shall be given to the Borough Engineer's office prior to any such construction so that he or a qualified representative may be present at the time the work is to be done.

The Borough Engineer's office shall be notified 48 hours in advance of any work being done so that he or a qualified representative may inspect the work.

Any improvement installed without notice for inspection pursuant to Subsection G(3) above shall constitute just cause for:

Removal of the uninspected improvement;

The payment by the developer of any costs for material testing;

The restoration by the developer of any improvements disturbed during any material testing; and/or

The issuance of a stop-work order by the Borough Engineer pending the resolution of any dispute.

A final inspection of all improvements and utilities will be done by the Borough Engineer to determine whether the work is satisfactory and in agreement with the approved final plan drawings and Borough specifications. The general condition of the site shall also be considered. Upon a satisfactory final inspection report, action will be taken to release or declare in default the performance guarantee covering such improvements and utilities.

Inspection by the Borough of the installation of improvements and utilities by the applicant shall not subject the Borough to liability for claims, suits or any other liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter; it is recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the applicant and his contractors, if any.

Engineering inspection fees. The obligor shall reimburse the municipality for reasonable inspection fees paid to the Municipal Engineer for the foregoing inspection of improvements: which fees shall not exceed the sum of the amounts set forth in Subsection H(1) and (2) of this subsection. The developer shall post the inspection fees in escrow in an amount:

Not to exceed 5% of the cost of bonded improvements that are subject to a performance guarantee under § 88-85A; and

Not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee under § 88-85A, which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4.

Installments. For those developments for which the inspection fees total less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees. For those developments for which the inspection fees total $10,000 or greater, fees may, at the option of the developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.

Request for additional deposit. If the municipality determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsections H(1) and (2) of this subsection, is insufficient to cover the cost of additional funds in escrow provided that the municipality delivers to the developer a written inspection escrow deposit request, signed by the Municipal Engineer, which: informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimate the time required for those inspections, and estimates the cost of performing those inspections.

Applicability of amendments not codified in this section. Any and all amendments made to N.J.S.A. 40:55D-53 et al. that have not been codified in this section shall be deemed incorporated herein.

Applicability to existing projects. The modifications in this section shall be applicable to all projects that have not yet received final approvals from the Borough Planning Board or the Borough Zoning Board of Adjustment and/or which have not posted bonds and begun construction of required improvements as of January 16, 2018, the date of enactment of P.L. 2017, c.312, which obviated the Borough's previously lawful ordinances.

§ 88-86 Off-tract improvements.

[Added 10-27-2005 by Ord. No. 18-2005[1]]

Purpose. As a condition of subdivision or site plan approval, and in accordance with N.J.S.A. 40:55D-42, the Planning Board (the "Board") shall require a developer/applicant to pay its pro rata share of the cost of providing reasonable and necessary improvements to the Borough's water, streets/street signalization, drainage, and sewer facilities, including land and easements, that are located off tract of the proposed subdivision or development but which are necessitated or required as a direct result of the impact that the subdivision or development will have upon the Borough. All such off-tract water, streets/street signalization, drainage and sewer improvements shall be in conformance with the circulation and comprehensive utility service plans of the Borough's Master Plan. Such improvements are those that are clearly, directly and/or substantially related to the subdivision or development under review, as further determined based on the provisions, calculations and methodologies being further set forth herein.

Cost allocation.

Full allocation. In cases where off-tract improvements are necessitated by the proposed development, and where no property owners receive a special benefit thereby, or where neither the Borough nor any other government entity has either planned, programmed, or accepted responsibility for any portion of the cost of the improvements, the developer/applicant shall be responsible, at the developer/applicant's sole expense and as a condition of approval, to either provide for and install such improvements, upon proper review and approval by the Borough of all such plans related to the same, or to provide for the necessary funding so that the Borough can make such improvements directly.

Proportionate allocation. When it is determined that properties outside the development will also be benefited by the off-tract improvements, or where either the Borough or other governmental agency or entity has planned or programmed or accepted responsibility for any portion of the cost of the improvement, the criteria set forth herein shall be utilized in calculating and determining the proportionate share of the cost of such improvements to the developer/applicant. A proportionate allocation shall not be made, however, and a developer/applicant shall be responsible for assuming all costs for improvements where there is a need to upgrade an existing facility or improvement due to its insufficient capacity, or other inadequacies, to service the needs of the developer/applicant's proposed development, but the existing facility or improvement is adequate to service the needs of the present users. Where a developer is required to "front end" an off-tract improvement (such as the extension of a sewer line to the proposed development), and future developers benefit from the same, then the original developer who made the improvement shall be entitled to a pro rata reimbursement from any subsequent developers who have directly benefited from the improvement, if said subsequent benefit accrues within 10 years from the date of the original improvement. In any such event, the following procedure shall take place:

The original developer shall certify the actual costs of the off-tract improvements, based on construction invoices, which shall then be verified by the Borough's Engineer.

The Borough Engineer shall then calculate the subsequent developer's pro rata contribution by dividing the use of the improvement by the subsequent developer by the use of the improvement made by all developments benefiting from the improvement, based on road capacity, daily sewage flow, daily water flow, etc.

The Borough shall then condition the issuance of the first building permit in the subsequent developer's development upon payment in full of the pro rata reimbursement to the original developer. Said reimbursement shall be payable to the Borough directly, which shall then reimburse the original developer, subject to payment of any liens, offsets or other funds due to the Borough by the original developer.

Alternate methods. Nothing herein shall be construed as to prevent the Board and the developer/applicant from agreeing to use an alternate method to allocate costs, or to use an alternate method to make the payments for pro rata reimbursements, then that which is set forth herein, given the unique and distinguishable characteristics of each application for development, as long as such alternate method is based on fair and reasonable standards, and the reason for adopting such alternate method is clearly set forth and agreed to by both the Board and the developer/applicant.

Off-tract water improvements. The developer/applicant's share of water distribution, supply, treatment, and storage facilities, including the installation, relocation or replacement of water mains, hydrants, valves, and appurtenances associated therewith, shall be computed as follows:

The capacity and design of the water supply system shall be based on standards computed by the developer's engineer and approved by the Planning Board's and/or the Borough's Engineer.

The Planning Board and/or Borough Engineer shall provide the developer/applicant with the existing and reasonably anticipated peak-hour flows as well as capacity limits for the affected water system in terms of average demand, peak demand and fire demand.

If the required system does not exist, or the existing system does not have adequate capacity to accommodate the developer/applicant's flow given existing and reasonably anticipated peak hour and fire flows, the pro rata share shall be computed to the larger of:

The partial cost of a shared improvement where none now exists:

Total cost of improvement

Developer/applicant's cost

=

Capacity of improvement [gallons per day (GPD)]

Development-generated design flow to be accommodated by the improvement (GPD)

The total cost of an improvement designed to accommodate only the development flow, if such an alternative is technically feasible; or

The full cost to upgrade an existing facility or improvements where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the needs of the developer/applicant, but is adequate to service the needs of the present users.

Off-tract roadway/signalization improvements.

Roadways/signalization. The developer/applicant's proportionate share of street improvements, alignments, channelization, barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements uncovered elsewhere, the construction or reconstruction of new or existing streets, and other associated street or traffic improvements shall be as follows:

Traffic study. A traffic impact study ("study") shall be provided by the developer/applicant as set forth in the Board's application submission requirements. The study shall address the various traffic-generating characteristics of uses in the proposed development and the interface of traffic from uses associated with the proposed development and existing uses in the area, to assure that there will not be a degradation in the level of service in the area and that there will not be any traffic hazards created in the area by traffic generated as a direct result of the development.

Level of service. The developer/applicant must demonstrate that the existing public traffic arteries have adequate capacities to accommodate the traffic to be generated by the proposed project at an acceptable level of service of D or better and that safe, convenient and adequate circulation and parking are provided for on site of the proposed development.

Traffic volumes. The developer/applicant must provide, as a part of its submitted study, existing twenty-four-hour traffic counts for a minimum of three different days, excluding Sundays and holidays, summarized by hour and by direction, and peak-hours trips by movement on all critical off-tract arterial roadways and intersections affected by the proposed development. Traffic volumes utilized in the study shall be taken within 12 months preceding the date that the application is filed with the Borough's Planning Board and be taken between the period of September 1 through June 15, excluding those days wherein inclement weather would make such counts not typical. If there is a seasonal peak, the study shall take the same into account and make appropriate comments.

Future background traffic volume. Future traffic volumes shall be calculated by multiplying the peak hour traffic volumes utilizing the current New Jersey Department of Transportation (NJDOT) growth factors. These factored traffic volumes will be surcharged with traffic volumes expected to be generated by implementing development in the area, based on development projects presently approved by, or pending before, the Borough's Planning Board and known projects presently approved by or pending before the planning boards of immediately adjacent municipalities which will clearly have an impact on local traffic.

Traffic generation. Traffic expected to be generated by the proposed development shall be calculated by utilizing the latest copy of the Institute of Transportation Engineers (ITE) text: Trip Generation. The values developed by using the Trip Generation method shall be verified by typical counts when requested by the Borough to verify results. If the Borough requires trip generation data because the Trip Generation methodology is not accurate due to local conditions or an inadequate database in the Trip Generation text, the traffic data counts required to verify Trip Generation data shall be in the ITE format. Traffic generation shall include the amount of traffic to be generated for the projected twenty-four-hour period and during the peak-hour trip generation by the proposed project.

Future build traffic volumes. Future background traffic volumes shall be surcharged by adding the traffic volumes that are to be generated by the proposed development to future background traffic volumes.

Traffic analysis.

Capacity analysis. Roadways and intersections shall be analyzed using a capacity analysis. The capacity analysis will utilize the latest approved highway capacity programs. Traffic shall be analyzed for the existing traffic conditions, future traffic conditions, and future build traffic conditions. Traffic analysis shall optimize traffic signals so that the existing traffic conditions show traffic conditions as they exist and with the optimization of traffic signal timing. The future background traffic conditions shall require the optimization of the traffic on the roadways. Future traffic shall be added and the traffic signal timings shall be optimized for a final product.

Accident analysis. Accident data of critical intersections and roadways shall be analyzed.

Speed and delay analysis. Speed and delay analysis of critical roadways shall be provided.

Gap analysis. Gap studies of critical intersections shall be provided.

Safety analysis. Analysis shall be made of all entrances and exits to determine if left-turn lanes are warranted in accordance with Highway Research Record 211. In addition, deceleration and acceleration lanes shall be analyzed to determine if they are needed.

Off-tract contributions.

The developer/applicant's traffic consultant shall provide a trip distribution that will distribute traffic to the surrounding roadway system. All intersections that have over 25 p.m. peak-hour trips shall be tabulated and listed with the amount of traffic from the proposed development and the total build traffic at that location. The developer/applicant's engineer shall show the percent of the p.m. traffic that the applicant's traffic will be of the future build traffic at each intersection by approach. If improvements are required on one approach of an intersection only, as a result of a significant impact from the development, defined as an approach where the majority of traffic on the approach (further defined as over 50% of the total traffic build) caused the need for the proposed improvement on that approach to maintain an adequate level of service, the developer/applicant's pro rata share of the intersection improvements shall be calculated as set forth below.

If the required improvements to accommodate the proposed development do not exist, or the existing system does not have adequate capacity to accommodate the anticipated volumes as set forth in the study, the pro rata share shall be the larger of:

The partial cost of a shared improvement where none exists:

Total cost of improvement

Developer/ applicant's cost

=

Capacity of improvement (peak hour volume)

Developer traffic to be accommodated by the enlargement or improvement (peak-hour volume)

The total cost of an improvement designed to accommodate only the development traffic volume if such an alternative is technically possible; or

The full cost to upgrade an existing facility or improvement where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the needs of the developer/applicant, but is adequate to service the needs of present users.

Off-tract drainage improvements. The applicant's proportionate share of stormwater and drainage improvements, including the installation, relocation and replacement of storm drains, bridges, culverts, catch basins, manholes, riprap, detention or retention basins, improved drainage ditches and appurtenances thereto, and relocation or replacement of other storm drainage facilities or appurtenances associated therewith, shall be determined as follows:

The capacity and the design of the drainage to accommodate stormwater runoff shall be based on standards set forth in Article V of this chapter, computed by the developer/applicant's engineer and approved by the Borough Planning Board's and/or the Borough's Engineer.

The capacity of the enlarged, extended or improved system required for the subdivision and areas outside of the developer/applicant's tributary to the drainage system shall be determined by the developer/applicant's engineer, subject to the approval of the Board's and/or Borough's Engineer. The plans for the improved system may be prepared by the developer/applicant's engineer, or the Board's or Borough's Engineer, at the developer/applicant's expense, and the estimated cost of the enlarged system shall be calculated by the Board's and/or Borough's Engineer.

If the required improvements do not exist, or if the existing system does not have adequate capacity to accommodate reasonably anticipated volumes, the pro rata share shall be the larger of:

The partial cost of a share improvement where none now exists:

Total cost of improvement

Developer/ applicant's cost

=

Capacity of improvement (cfs - peak 25-year storm)

Development-generated peak by the enlargement or improvement (cfs - peak 25-year storm)

The total cost of an improvement designed to accommodate only the development flow, if such an alternative is technically possible; or

The full cost to update an existing facility or improvement where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the needs of the developer/applicant, but is adequate to service the needs of the present users:

Off-tract sewer improvements.

The capacity and design of sanitary sewer systems shall be based on Rules and Regulations for the Preparation and Submission for Sewerage Systems, New Jersey Department of Environmental Protection, as well as any and all other design and specifications standards as may be set forth by the Borough of Clayton and/or its professionals responsible for approval and oversight of such systems.

The developer/applicant shall be responsible for the entire cost of any off-tract improvements for sanitary sewer systems, including distribution facilities, the installation, relocation or replacement of collector, trunk and interceptor sewers, and the installation, relocation or replacement of other appurtenances associated therewith, that are necessary as a direct result of the proposed development. This shall apply both to the need for any new systems, facilities, appurtenances, etc., as well as the cost to upgrade an existing facility or improvement where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the ends of the developer/applicant's proposed development, but is adequate to service the needs of the present users.

In the event that a new system and/or facilities or appurtenances associated therewith is/are necessary where none now exist, but said new system and/or facilities or appurtenances associated therewith will be shared with other users who do not now benefit from the same, the developer/applicant's partial cost of said shared improvement shall be as follows:

Total cost of improvement

Developer/ applicant's cost

=

Capacity of improvement [gallons per day (GPD)]

Developer/applicant-generated flow to be accommodated by the improvement (GPD)

Editor's Note: This ordinance also repealed former § 86, Off-tract improvements.