Delaware City Zoning Code

In addition to the nonrefundable application fees, there is hereby created an escrow account, the purpose of which is to defray the costs of application reviews by the Planning Board and Board of Adjustment. The fees required to be paid into the escrow account shall apply regardless of whether the application is to be heard by the Planning Board or by the Board of Adjustment. The escrow account shall be managed in accordance with the provisions of N.J.S.A. 40:55D-53.1 and 53.2.

Before submitting an application for development to either the Board of Adjustment or the Planning Board, the applicant shall be required to make a deposit with the Township's Chief Financial Officer as hereinafter provided and to execute an escrow agreement to defray the cost to the Township of all necessary and reasonable charges incurred for technical and professional reviews on behalf of the municipal agency. All fees required by this Section and any other ordinance or section of this chapter shall be paid prior to an application being considered complete; provided however, that payment of a fee shall not in and of itself be deemed to render an application complete. Escrow deposits shall be payable by separate check and shall be accompanied by a signed escrow agreement.

Boundary adjustment and merger/boundary adjustment and exchange: $2,500.

Minor subdivisions: $3,000.

Major subdivision concept plan: $4,500.

Major subdivision preliminary plan including two or fewer lots: $6,000.

Major subdivision preliminary plan including more than two lots: $18,750 plus $1,500 per lot.

Major subdivision final plan including two or fewer lots: $3,000.

Major subdivision final plan including more than two lots: $9,000 plus $450 per lot.

Any "d" variance: $4,000 per variance.

Conditional use: $1,500.

Up to 3 "c" variances: $1,000. Each additional "c" variance $300.

All other applications to the Board of Adjustment as specified in § 230-141D: $2,500.

Major solar or photovoltaic energy facilities and structures: $7,500.

The following site plan review escrow fees are hereby required and shall be in addition to subdivision and variance review escrow fees, where applicable. In addition to the fees listed below, there shall be a $25 nonrefundable charge to cover the cost of bookkeeping, which charge shall be added to the initial escrow account deposit. Escrow fees for PWSFs are set forth in Subsection E(3) below.

In the event that preliminary approval of a site plan has been granted, and the applicant subsequently applies for final site plan approval, an additional escrow deposit of $400 shall be payable to the Township of Delaware.

Escrow fees for PWSFs. Escrow fees for PWSFs shall be as follows:

The fees provided for in this section shall be the sums initially required to be deposited into the escrow account to cover the costs of development application reviews. The establishment of such initial deposits shall not absolve the applicant of the responsibility for replenishing the escrow account as provided at N.J.S.A. 40:55D-53.2, nor shall the escrow fees established herein for development application reviews cover or preclude the payment of any other required fees or escrow deposits required by this chapter.

An application shall not be considered complete until such time as the fees provided for in this section have been deposited with the Township, and the Planning Board or Board of Adjustment, as the case may be, shall not act upon or consider any development application until the initial escrow account deposit has been paid in full.

The Chief Financial Officer of the Township shall make all of the payments to professionals for services rendered to the Township or municipal agency for review of applications for development, review and preparation of documents, inspection of improvements or other purposes permitted under the provisions of this chapter.

Such fees or charges shall be based upon a schedule established by resolution. The application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the municipality. The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professional or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements. The Township or municipal agency shall not bill the applicant or charge the escrow account for any municipal clerical or administrative functions, overhead expenses, meeting room charges, or any other municipal costs and expenses except as provided for herein, nor shall a municipal professional add any such charges to his bill.

If the salary, staff support and overhead for a municipal professional are provided by the municipality, the charge shall not exceed 200% of the sum of the products resulting from multiplying: the hourly base salary, which shall be established annually by ordinance, of each of the professionals; by the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the municipality when fees are not reimbursed or otherwise imposed on applicants or developers.

Each payment charged to the escrow account for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service, and, for each date, the services performed, the hours spent to one-quarter-hour increments, the hourly rate and the expenses incurred. All professionals shall submit their vouchers to the Chief Financial Officer of the Township on a monthly basis in accordance with schedules and procedures established by the Chief Financial Officer. If the services are provided by a municipal employee, the municipal employee shall prepare and submit to the Chief Financial Officer a statement containing the same information as required on a voucher, on a monthly basis. Each professional shall send an information copy of all vouchers or statements submitted to the Chief Financial Officer simultaneously to the applicant.

All professional charges for review of an application for development, review and preparation of documents or inspection of improvements shall be reasonable and necessary, given the status and progress of the application or construction. Review fees shall be charged only in connection with an application or construction. Review fees shall be charged only in connection with an application for development presently pending before the municipal agency or upon review of compliance with conditions of approval or review of requests for modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any state governmental agency and not under municipal jurisdiction except to the extent consultation with a state agency is necessary due to the effect of state approvals on the subdivision or site plan. Inspection fees shall be charged only for actual work shown on a subdivision or site plan or required by the resolution of approval. Professionals inspecting improvements under construction shall charge only for inspections that are reasonably necessary to check the progress and quality of the work, and such inspections shall be reasonably based on the approved development plans and documents.

If the municipality retains a different professional or consultant in the place of the professional originally responsible for development application review or inspection of improvements, the Township or the municipal agency, as the case may be, shall be responsible for all time and expenses of the new professional to become familiar with the application or the project, and the Township or municipal agency shall not bill the application nor charge the escrow account for any such services.

The Chief Financial Officer of the municipality shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements, and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis, if monthly charges are $1,000 or less, or on a monthly basis if monthly charges exceed $1,000.

If an escrow account or deposit contains insufficient funds to enable the municipal agency or Township to perform required application reviews or improvement inspections, the Chief Financial Officer shall provide the applicant with a notice of the insufficient escrow deposit balance. In order for work to continue on the development or the application, the applicant shall, within 10 business days, post a deposit to the account in an amount to be agreed upon by the municipal agency or Township and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

The following closeout procedure shall apply to all escrow accounts. The closeout procedure shall commence after the municipal agency has granted final approval and signed the subdivision plat or site plan, in the case of application review escrows, or after the improvements have been approved, in the case of improvement inspection escrows. The applicant shall send written notice by certified mail to the Chief Financial Officer of the Township, to the municipal agency and to the relevant municipal professionals that the application or the improvements, as the case may be, have been completed. After receipt of such notice, each professional shall render a final bill to the Chief Financial Officer within 30 days and shall send a copy simultaneously to the applicant. The Chief Financial Officer shall render a written final accounting to the applicant on the uses to which the deposit was put within 45 days of receipt of final bill. Any balances remaining in the deposit or escrow account, including interest, in accordance with N.J.S.A. 40:55D-53.1, shall be refunded to the developer along with the final accounting.

An applicant shall notify the governing body in writing with copies to the Chief Financial Officer, the municipal agency and the affected professional whenever the applicant disputes the charges made by a professional for service rendered to the Township or municipal agency in reviewing applications for development, review and preparation of documents, inspection of improvements or other charges made in the implementation and enforcement of this chapter. The governing body, or its designee, shall, within 30 days of such notice, attempt to remediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals any charge to an escrow account by any municipal professional or consultant or the cost of the installation of improvements estimated by the Municipal Engineer pursuant to N.J.S.A. 40:55D-53.4. The procedures for filing an appeal to the County Construction Board of Appeals shall be as set forth at N.J.S.A. 40:55D-53.2.a.

During the pendency of any appeal, the Township or municipal agency shall continue to process, hear, and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance or maintenance guarantees, the issuance of construction permits or certificates of occupancy, or any other approval or permit because an appeal has been filed or is pending under this section. The Chief Financial Officer of the municipality may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment to a professional or consultant who is not an employee of the municipality, the professional or consultant shall reimburse the municipality in the amount of any such disallowed charge.

Boundary adjustment: $250.

One to three new lots: $450.

Four to seven new lots: $750.

Eight to 12 new lots: $1,000.

Thirteen to 19 new lots: $1,250.

Twenty or more new lots: $2,500 plus $50 per lot over 20 lots.

In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject to the adoption of Rules by COAH.

Pursuant to N.J.S.A. 52:27D-329.2 (L. 2008, c. 46, § 8) and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of COAH or a court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.

This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance N.J.S.A. 52:27D-329.2 (L. 2008, c. 46, § 8) and N.J.S.A. 40:55D-8.1 through 8.7 (L. 2008, c. 46, §§ 32 through 38). Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.

This chapter shall not become effective until approved by COAH pursuant to N.J.A.C. 5:96-5.1.

The Township shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.

Imposed fees.

Eligible exactions, ineligible exactions and exemptions for residential development.

Imposed fees.

Eligible exactions, ineligible exactions and exemptions for nonresidential development.

Upon the granting of a preliminary, final or other applicable approval for a development, the applicable approving authority shall direct its staff to notify the Construction Official responsible for the issuance of a building permit.

For nonresidential developments only, the developer shall also be provided with a copy of form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption" to be completed as per the instructions provided. The developer of a nonresidential development shall complete form NRDF as per the instructions provided. The Construction Official shall verify the information submitted by the nonresidential developer as per the instructions provided in the form N-RDF. The Township Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in form N-RDF.

The Construction Official responsible for the issuance of a building permit shall notify the Township Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.

Within 90 days of receipt of that notice, the Township Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.

The Construction Official responsible for the issuance of a final certificate of occupancy shall notify the Township Tax Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.

Within 10 business days of a request for the scheduling of a final inspection, the Township Tax Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.

Should the Township fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in N.J.S.A. 40:55D-8.6 (L. 2008, c.46, § 37, subsection b).

Fifty percent of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at building permit and that determined at issuance of certificate of occupancy.

Appeal of development fees.

The Township has established a separate, interest-bearing housing trust fund to be maintained by the Chief Financial Officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.

The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

The Township has provided COAH with written authorization, in the form of a three-party escrow agreement between the Township, the bank, and COAH, to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).

All interest accrued in the Affordable Housing Trust Fund shall only be used on eligible affordable housing activities approved by COAH.

The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the Affordable Housing Trust Fund may be used for any activity approved by COAH to address the Township's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to: preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.

Funds shall not be expended to reimburse the Township for past housing activities.

At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the Township's Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.

The ability for the Township to impose, collect and expend development fees shall expire with the expiration of its substantive certification unless the Township has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance.

If the Township fails to renew its ability to impose and collect development fees prior to the expiration of its substantive certification, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the New Jersey Affordable Housing Trust Fund established pursuant to N.J.S.A. 52:27D-320 (L. 1985, c.222, § 20).

The Township shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification, nor shall the Township retroactively impose a development fee on such a development. The Township shall not expend development fees after the expiration of its substantive certification.

The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the governing body by resolution.

As a condition or as 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, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth at N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.

If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the municipality for the reasonable costs 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 completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.).

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 request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B, a list of all uncompleted or unsatisfactorily 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.

The Municipal Engineer shall thereupon inspect all improvements covered by the obligor's request and 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 improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, 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 Subsection B herein.

The governing body, by resolution, shall either approve the 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 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 Subsection B herein. This resolution shall be adopted not later than 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 with respect to those approved 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 posted may be retained to ensure completion and acceptability of all improvements.

For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved 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 B, including any contingency factor applied to the cost of installation. If the sum of the approved 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 to ensure completion and acceptability of all improvements, as provided above.

If the Municipal Engineer fails to send or provide the list and report as requested by the obligor within 45 days from receipt of the request, the obligor may apply to the Court in a summary manner for an Order compelling the Municipal Engineer to provide the list and report within a stated time and the cost of applying to the Court, including reasonable attorney's fees, may be awarded to the prevailing party.

If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guarantee for the completed and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the completed and satisfactory improvements and approval of a reduction in the performance guarantee for the approvable completed and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B herein; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

In the event that the obligor has made a cash deposit with the Township or Municipal Agency as part of the performance guarantee, then any partial reduction granted in the performance guarantee shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

If any portion of the required improvements is rejected, the Municipal Agency may require the obligor to complete or correct such improvements, and, upon completion or correction, the same procedure of notification, as set forth herein, shall be followed.

Nothing herein shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the Municipal Engineer.

In the event that final approval is by stages or sections of the development pursuant to N.J.S.A. 40:55D-38, the provisions of this section shall be applied to each stage or section of the development.

To the extent that any of the improvements have been dedicated to the Township on the subdivision plat or site plan, the governing body shall be deemed, upon the release of any performance guarantee, to accept dedication for public use of streets or roads and any improvements made thereon according to the approved site plan or subdivision plat, provided that such improvements have been inspected and have received final approval by the Municipal Engineer.

The performance guarantee shall consist of any security which is acceptable to the Planning Board or Zoning Board of Adjustment attorney, including but not limited to a performance bond, letter of credit or cash.

The Board shall accept a performance guarantee or maintenance guarantee which is an irrevocable letter of credit if it:

The Township, Zoning Board of Adjustment or Planning Board shall not require that a maintenance agreement be in cash or that more than 10% of the performance guarantee be in cash. A developer may, however, provide, at his own option, some or all of the maintenance guarantee in cash or more than 10% of the performance guarantee in cash.

Notwithstanding any ordinance to the contrary, a Municipal Agency shall accept any standardized form for a performance guarantee, maintenance guarantee or letter of credit adopted by regulation by the Department of Community Affairs pursuant to N.J.S.A. 40:55D-53a in satisfaction of this section.