Delaware City Zoning Code
ARTICLE VII
Development Review Administration
§ 230-72 Municipal agency.
Each municipal agency shall administer the provisions of this chapter pursuant to the organizational and operational procedures set forth herein.
§ 230-73 Meetings and hearings.
A.
Rules for meetings. Every municipal agency shall by its rules fix the time and place for holding its regular meetings for business authorized to be conducted by such agency. Regular meetings of the municipal agency shall be scheduled not less than once a month and shall be held as scheduled unless canceled for lack of applications for development to process. The municipal agency may provide for special meetings at the call of the chairman or on the request of any two of its members, which shall be held on notice to its members and the public in accordance with state law. No action shall be taken at any meeting without a quorum being present, a quorum being a majority of the full authorized membership. All actions shall be taken by a majority vote of a quorum, except as otherwise required by Articles V and VI of this chapter. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.
B.
Public meetings. All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with state law. An executive session for the purpose of discussing certain matters as specified by state law shall not be deemed a regular or special meeting within the meaning of this chapter.
C.
Minutes. Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the municipal agency and of the persons appearing by attorney, the action taken by the municipal agency, the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Municipal Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party may be charged a reasonable fee for reproduction of the minutes for his use.
D.
Hearings. The municipal agency shall hold a hearing on each application for development.
E.
Rules for hearings. The municipal agency shall make the rules governing such hearings. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 21 days before the date of the hearing during normal business hours in the office of the Municipal Clerk. The applicant may produce other documents, records, or testimony at the hearing to substantiate or clarify or supplement the previously filed maps.
F.
Presiding officer powers. The officer presiding at the hearing or such person as he may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law[1] shall apply.
[1]
Editor's Note: See N.J.S.A. 2A:67A-1 et seq.
G.
Witnesses' oaths. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
H.
Rules of evidence. Technical rules of evidence shall not be applicable to the hearing, but the agency may exclude irrelevant, immaterial, or unduly repetitious evidence.
I.
Recording proceedings. The municipal agency shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The municipal agency shall furnish a transcript, or duplicate recording in lieu thereof, on request to any interested party at his expense.
J.
Decisions. Each decision on any application for development shall be in writing and shall include findings of facts and conclusions based thereon. The municipal agency shall provide the findings and conclusions through:
(1)
A resolution adopted at a meeting held within the time period provided in this chapter for action by the municipal agency on the application for development; or
(2)
A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to Subsection A (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publication required by this chapter. If the municipal agency fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing within a stated time and the cost of the application, including attorney's fees, shall be assessed against the municipality.
K.
Distribution of decisions. A copy of the decision shall be mailed by the municipal agency within 10 days of the date of decision to the applicant, or if represented, then to his attorney, without separate charge, and to all who request a copy of the decision for a reasonable fee. A copy of the decision shall also be filed by the municipal agency in the office of the Municipal Clerk. The Municipal Clerk shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at his or her office during reasonable hours.
L.
Publication of decisions. A brief notice of the decision shall be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the Municipal Clerk. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision.
§ 230-74 Notice requirements.
A.
Public notice. Public notice of a hearing shall be required respecting each of the listed applications referred to in § 230-80 of this chapter.
B.
Requirements of notice. Notice pursuant to this chapter shall state the date, time and place of the hearing, the nature of the matters to be considered and an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Municipal Tax Assessor's office, and the location and times at which any maps and documents for which approval is sought are available.
C.
Time of notice. Notice shall be given by the applicant at least 10 days prior to the date of the hearing.
D.
Notice publication. Public notice of a hearing on an application for development shall be given by publication in the official newspaper of the municipality if there be one, or in a newspaper of general circulation in the municipality and shall be given to the owners of all real property as shown on the current tax duplicate, located within 200 feet in all directions of the property which is the subject of such hearing by: serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property; or mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate. Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.
E.
Listing of property owners. Upon the written request of an applicant, the Municipal Clerk of the municipality shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to § 230-73D. The applicant shall be entitled to rely upon the page information contained in such list, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name or $10, whichever is greater, may be charged for such list.[1]
F.
Notice to adjoining municipalities. Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality.
G.
Notice to County Planning Board. Notice shall be given by personal service or by certified mail to the County Planning Board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the official county map or on the County Master Plan or adjacent to other county land.
H.
Notice to Commissioner of Transportation. Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.
I.
Notice to State Planning Commission. Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk.
J.
Proof of service. The applicant shall file an affidavit of proof of service with the municipal agency holding the hearing on the application for development in the event that the applicant is required to give notice pursuant to this section.
K.
Certified mail completeness. Any notice made by certified mail shall be deemed complete upon mailing.
§ 230-75 Simultaneous review and approval.
Whenever the municipal agency shall have the power to review and approve or deny variances, conditional uses, or site plans simultaneously with review for subdivision approval, the developer shall not be required to make further application to the agency, nor shall the agency be required to hold further hearings. The longest time period for action by the municipal agency, whether it be for subdivision, conditional use, variance or site plan approval, shall apply. Whenever multiple approvals are requested by the developer pursuant to this ection, notice of the hearing on the application shall include reference to the request for all approvals.[1]
[1]
Editor's Note: Original Section 7:5, Appeals to the governing body, which immediately followed this section, was repealed 3-10-2008 by Ord. No. 2008-03LU.
§ 230-76 Variances.
A.
Approval required. Whenever variances are required from the standards and conditions of this chapter, approval is required of the municipal agency pursuant to the authority granted by the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.). A request for a variance shall be submitted and distributed in the same manner as prescribed for all applications in Articles VIII and IX of this chapter.
B.
Time for decision. All applications for variances shall require a decision of the municipal agency within the time periods established in this chapter for the type of variance or approval required.
C.
Guiding principles.
(1)
Every variance granted by the municipal agency shall be based upon and accompanied by a specific finding or findings, supported by evidence produced by law, to the effect that the exceptional circumstances of the particular case are such as to constitute practical difficulties or undue hardship in the way of carrying out the strict application of the regulations of this chapter.
(2)
Every variance granted by the municipal agency shall be designed by said agency to safeguard the public health, safety, morals, and general welfare, and shall be further designed to provide reasonable consideration, among other things, to the character of the neighborhood or zone, the conservation of property values, the direction of building development in accordance with the Master Plan or portion thereof which has been adopted by the Planning Board, and shall not involve substantial detriment to the public good nor substantially impair the intent and purpose of this chapter, to the end that the spirit of this chapter shall be observed, public safety ensured and substantial justice done.
(3)
Every variance granted by the municipal agency shall in appropriate cases be made subject to such conditions and safeguards as said agency shall deem to be applicable to the particular case.
(4)
Every variance that has not been exercised within five years from the enactment of this chapter or within five years from time of approval by the municipal agency, whichever is greater, shall expire. The applicant may thereafter apply for and the municipal agency may thereafter grant an extension to the approval of the variance if the reasons for granting the initial variance remain valid.
D.
Proof requirements. At the time of the hearing, the applicant is required to produce proof either by way of oral testimony or by way of documents that reasons exist for the grant of each variance sought, and that the grant of the variance will not be a substantial detriment to the public good nor substantially impair the intent and purpose of the municipal zone plan and Zoning Ordinance. This chapter does not relax the standards of proof as required by the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., as amended.