This title shall be known and may be cited as the "Land Development Control Ordinance of the City of Elizabeth, New Jersey."

(Prior code § 40-1)

There is ordained by the city council for the city, pursuant to the provisions of P.L. 1975, c. 291, a land development control ordinance codified in this title for the following purposes:

A.

To provide for the appropriate design, location and nature of the uses or development of all lands in this city, in a manner which will promote the public health, safety, morals and general welfare.

B.

To secure safety from fire, flood, panic and other natural and man-made disasters.

C.

To provide adequate light, air and open space.

D.

To ensure that the development of the city does not conflict with the development and general welfare of neighboring municipalities, the county and the state as a whole.

E.

To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, the city and the region and preservation of the environment.

F.

To encourage the appropriate and efficient expenditure of public funds by the coordination of public development with land use policies.

G.

To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all citizens.

H.

To encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight.

I.

To promote a desirable visual environment through creative development techniques and good civic design and arrangements.

J.

To promote the conservation of open space and valuable natural resources and to prevent urban sprawl and degradation of the environment through improper use of land.

K.

To encourage planning of developments which incorporate the best features of design and relate the type, design and layout of residential, commercial, industrial and recreational development to the particular site.

L.

To encourage senior citizen community housing construction consistent with provisions permitting other residential uses of a similar density in the same zoning district.

M.

To encourage coordination of the various public and private procedures and activities shaping land development with a view to lessening the cost of such development and to the more efficient use of land.

(Prior code § 40-2)

A.

In the interpretation and the application of the provisions of this title, they shall be held to be the minimum requirements for the promotion of the health, safety, morals and general welfare. It is not intended to interfere with or abrogate or annul other rules, regulations or ordinances, provided that where this title imposes greater restrictions upon the use of buildings or premises or upon the height or bulk of a building or requires larger open spaces, the provisions of this title shall apply.

B.

Construal and Usage. Unless the context otherwise requires, the following definitions shall be used in the interpretation and construction of this title. Words used in the present tense include the future; the singular number shall include the plural, and the plural the singular; the word "building" includes the word "structure"; the word "used" includes the word "arranged, designed, constructed, altered, converted, rented, leased or intended to be used"; the word "shall" is mandatory and not optional; and the word "abut" includes the words "directly across from."

C.

Terms Defined. As used in this title the following terms shall have the meanings indicated:

"Accessory use or structure" means a use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building.

"Administrative officer" shall be the director of the department of construction, who shall be the chief zoning administrator of the city.

"Alley" means a public thoroughfare which affords only a secondary means of access to abutting property.

"Amusement games or entertainment machines or devices" mean such games, machines or devices as defined in Chapter 5.12 of this code.

"Amusement machine complex" means a special grouping of games, machines or devices as defined in Chapter 5.12 of this code.

"Applicant" means a developer submitting an application for development.

"Application for development" means the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, conditional use, zoning variance or direction of the issuance of a permit pursuant to Section 25 or 27 of P.L. 1975, c.291.

"Approval authority" means the planning board or the board of adjustment pursuant to Section 17.28.110 of this title.

"Automobile or trailer sales area" means an open area, other than a street, used for the display, sale or rental of new or used motor vehicles or trailers in operable condition and where no repair work is done.

"Automobile service station" means a building or place of business where gasoline is supplied and dispensed directly to the motor vehicle trade at retail.

"Basement" means a partially subterranean story of a building connected with an interior passageway.

"Bedroom density" means the number of bedrooms per gross acre of residential land including streets and easements.

"Billboard" means a sign that directs attention to a business, commodity, service or entertainment conducted at a location other than the premises on which the billboard is located.

"Board of adjustment" means the board established pursuant to Section 56 of P.L. 1975, c.192.

"Buffer" means an unoccupied area, located within the lot perimeter, which is required by this title.

"Building" means a structure having a roof supported by columns or walls, used or intended to be used for the shelter or enclosure of persons, animals or property. When such a structure is divided into separate parts by one or more unpierced walls extending from the ground up, each part is deemed a separate building, except as regards minimum side yard requirements.

"Building inspector" means any city official or designee charged with inspection or enforcement duties under the various construction or land development codes.

"Building, principal" means a structure in which is conducted the principal use of the site on which it is situated. In any residential district any dwelling shall be deemed to be a principal building on the zone lot on which it is located.

"Capital improvement" means a governmental acquisition of real property or major construction project.

"Cellar" means a subterranean room not connected to the interior of a building.

"Child care" means the provision of supervisory and/or educational services to two or more unrelated children which is not subject to the compulsory education requirements of the state.

"Circulation" means systems, structures and physical improvements for the movement of people, goods, water, air, sewage or power by such means as street, highways, railways, waterways, towers, airways, pipes and conduits and the handling of people and goods by such means as terminals, stations, warehouses and other storage buildings or transshipment points.

"City" means the city of Elizabeth.

"City engineer" means the appointed municipal engineer or a consultant reviewing engineering drawings.

"City planner" means an appointed city planner or a consultant reviewing site plans.

"Commercial vehicle" means any vehicle not classified as a private passenger vehicle.

"Conditional use" means a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in Schedule III of Chapter 17.36, and upon the issuance of an authorization therefor by the planning board.

"County planning board" means the planning board of the county in which the land or development is located.

"Court" means any open, unoccupied area which is bounded by three or more attached building walls.

"Days" means calendar days.

"Density' means the permitted number of dwelling units per gross area of land to be developed.

"Developer" means the legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development including the holder of an option or contract to purchase or other person having an enforceable proprietary interest in such land.

"Development" means the division of a parcel of land into two or more parcels; the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure or of any mining, excavation or landfill; and any use or change in the use of any building or other structure or land, or the extension of use of land, for which permission may be required pursuant to this title.

"Distribution center" means a building with dock doors on at least two (2) sides, primarily used for (i) short-term storage of product and (ii) relatively high velocity distribution from the facility to multiple locations. Fulfillment centers and parcel hubs may be considered a distribution center, subject to the other requirements of this section.

"District or zone" means any portion of the territory of the city within which certain uniform regulations and requirements of various combinations thereof apply under the provisions of this title.

"Dock door" means a type of sectional door used located on a building façade above grade, which allows truck trailers door to open into the building for the loading and unloading of materials and goods.

"Drainage" means the removal of surface water or groundwater from land by drains, grading or other means and includes control of runoff to minimize erosion and sedimentation during and after construction or development and other means necessary for water supply preservation or prevention or alleviation of flooding.

"Drainage, right-of-way," see "public drainage-way."

"Drive-in door" means a grade level door that is located at grade with ground both inside and outside of the building that vertically opens and closes down to the ground, and allows for the passage of vehicles through it.

"Dwelling" means any building used as the domicile of one or more persons.

"Dwelling unit" means a portion of a structure used for living purposes which is entirely separated from other portions of the structure by walls and floors which are not pierced except for access to the outside or to a common room or corridor.

"Educational use" means parochial and private, elementary and secondary schools duly licensed by the state of New Jersey, attendance at which is in sufficient compliance with the compulsory education requirements of the state. Summer day camps shall not be considered as educational uses or accessories to such uses.

"Erosion" means detachment and movement of soil or rock fragments by water, wind, ice and gravity.

"Essential service" means the erection, construction, alteration or maintenance, by public utilities or municipal or other governmental agencies, of underground or overhead gas, electrical, steam or water transmission or distribution systems, including poles, wires, mains, drains, sewers, pipes, conduits, cables, fire alarm boxes, police call boxes, traffic signals, hydrants and other similar equipment and accessories in condition therewith, reasonably necessary for the furnishing of adequate service, by such public utilities or municipal or other governmental agencies or for the public health or safety or general welfare, but not including buildings.

"Family" means one or more persons living together as a single housekeeping unit.

"Final approval" means the official action of the approving authority taken on a preliminary approved subdivision or site plan after all conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guaranties properly posted for their completion or approval conditioned upon the posting of such guaranties.

"Floor area" means the sum of the gross horizontal area of all floors of all buildings on a site excluding portions used for off-street parking, stairways, vertical shafts or with floor-to-ceiling height less than seven feet.

"Fly ash" means particles of gas-borne matter, not including process material, arising from the combustion of solid fuel, such as coal or wood.

"Fulfillment center" means a type of building for third-party logistics that receives, processes, and fills customer orders on behalf of retailers. Fulfillment centers are characterized by the presence of multiple mezzanine levels and require additional on site parking for employee vehicles.

"Garage, private" means a detached or attached accessory building used only for the storage of private passenger vehicles owned or rented.

"Garage, public" means any garage other than a private garage which is open to the public and used for the storage of motor vehicles.

"Garbage collection area" means that portion of the exterior property areas of premises, together with all walkways leading thereto, which are provided by every dwelling with three or more dwelling units for the storage of garbage and rubbish.

"Gas station" means the same as "automobile service station."

"Hotel" means a building designed for occupancy as the temporary residence of individuals who are lodged with or without meals and in which no provision is made for cooking in any individual room or suite.

"Intersted party" means in a criminal or quasi-criminal proceeding, any citizen of the state of New Jersey; and in the case of a civil proceeding in any court or in an administrative proceeding before a municipal agency, any person, whether residing within or without the municipality, whose right to use, acquire or enjoy property is or may be affected by any action taken under this title or whose rights to use, acquire or enjoy property under this title or under any other law of this state or of the United States have been denied, violated or infringed by an action or a failure to act under this title.

"Land" includes improvements and fixtures on, above or below the surface.

"Limited access highway" means a highway designed in such a manner as to provide no direct access to properties abutting its right-of-way and including all highways designated as "limited-access highways" by the planning board.

"Lot area" means the computed area contained within the lot lines.

"Lot or zone lot" means a piece or parcel of land occupied or intended to be occupied by a principal building or a group of such buildings and accessory buildings or utilized for a principal use and uses accessory or incidental to the operation thereof, together with such open spaces as required by this title, and having frontage on a public street.

"Lot. corner" means a lot abutting upon two or more streets at their intersection or upon two parts of the same street, such streets or parts of the same street forming an interior angle of less than one hundred thirty-five (135) degrees. The point of intersection of the street lot lines is the "corner."

"Lot lines" means the property lines bounding the lot.

1.

"Lot line, front" means the line separating the lot from a street.

2.

"Lot line, rear" means the lot line opposite and most distant from the front lot line.

3.

"Lot line, side" means any lot line other than a front or rear lot line. A side lot line separating a lot from a street is called a "side-street lot line."

4.

"Lot line, street or alley" means a lot line separating the lot from a street or alley.

"Lot of record or existing lot of record" means a piece or parcel of land which was duly recorded with the county recording officer prior to May 30, 1962.

"Lot width" means the distance between the two side lot lines measured at the required setback line.

"Maintenance guranty" means any security, other than cash, which may be accepted by a municipality for the maintenance of any improvements required by P.L. 1975, c.291.

"Master plan" means a composite of one or more written or graphic proposals for the development of the municipality as set forth in and adopted pursuant to Section 19 of P.L. 1975 c.29l.

"Minor auto repair" means repair of automobiles not normally involving overnight storage or long-term repair, such as fender and body repair, suspension and chassis repair or transmission or motor rebuilding or overhaul.

"Minor subdivision" means a subdivision of land that does not involve the creation of more than two lots, any new streets or the extension of any off-tract improvement.

"Motels, motor courts and motor hotels" means a series of attached or semidetached dwelling structures, where each unit has convenient access to parking space for the use of the unit's occupants. The units, with the exception of the manager's or caretaker's, are designed to provide sleeping accommodations for automobile transients or overnight guests.

"Music machines or devices" means such machines or devices as defined in Chapter 5.12 of this code.

"Nonconforming lot" means a lot, the area, dimension or location of which was lawful prior to the adoption, revision or amendment of the zoning ordinance but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.

"Nonconforming structure" means a structure, the size, dimension or location of which was lawful prior to the adoption, revision or amendment of the zoning ordinance but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.

"Nonconforming use" means a use or activity which was lawful prior to the adoption, revision or amendment of the zoning ordinance but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.

"Nursing home" means any premises licensed by the state of New Jersey to function as a nursing home.

"Official map"means a map adopted by ordinance pursuant to Article V, P.L. 1975, c.291.

"Office building" means a building comprised of more than fifty (50) percent of its floor area as offices, as compared with offices which are permitted in the C-1 district and as compared with home occupations where professional offices are considered as a secondary or incidental use.

"Off-site" means located outside the lot lines of the lot in question but within the property (of which the lot is part) which is the subject of a development application or on a contiguous portion of a street or right-of-way.

"Off-tract" means on the property which is the subject of a development application nor on a contiguous portion of a street or right-of-way.

"On-site" means located on the lot in question.

"On-tract" means on the property which is the subject of a development application or on a contiguous portion of a street or right-of-way.

Owner. See "Developer."

"Parcel hub" means a type of warehouse that typically serves as regional and local freight-forwarder facilities for time sensitive shipments via airfreight and ground carriers that is characterized by a building that is one hundred fifty (150) to three hundred (300) feet wide, with access to dock doors provided on two (2) opposites of the building and up to all four (4) sides. This use may include truck maintenance, wash, or fueling facilities.

"Parking area, commercial" means an open area, other than a street or other public way, used for the parking of automobiles and available to the public whether for a fee, free or as an accommodation for clients or customers.

"Parking area, aprivate" means an open area for the same uses as a private garage and regulated as a private garage.

"Party immediately concerned," for purposes of notice, means any applicant for development, the owners of the subject property and all owners of property and government agencies entitled to notice under Section 7.1, P.L. 1975, c. 291.

"Performance guranty" means any security, which may be accepted by a municipality, including cash, provided that a municipality shall not require more than ten (10) percent of the total "performance guaranty" in cash.

"Planned development" means an area to be developed according to a plan as a single entity containing one or more structures with appurtenant common areas.

"Planned development groups" means a structure or group of structures designed to be maintained and operated as a unit in a single ownership or control by an individual, partnership, corporation or cooperative group and which has certain facilities in common, such as yards and open spaces, recreation areas, garages and parking areas.

"Planning board" means the planning board of the city of Elizabeth.

"Plat" means a map or maps of a subdivision or site plan.

"Preliminary approval" means the conferral of certain rights pursuant to Sections 34, 36 and 37 of P.L. 1975, c.291, prior to final approval after specific elements of a development plan have been agreed upon by the approving authority and the applicant.

"Preliminary floor plans and elevations" means architectural drawings prepared during early and introductory stages of the design of a project illustrating in a schematic form its scope, scale and relationship to its site and immediate environs.

"Private garages" means accessory structure for use by private passenger vehicles operated by residents or owners of the primary structure.

"Private passenger vehicle" means a vehicle used for providing transportation for the owner or members of his family and so registered by the appropriate state motor vehicle agency.

"Private swimming pool" means any pool designed, used and maintained for swimming purposes by an individual for use by his or her household and guests, including all equipment and appurtenances thereto, and located on property owned, leased or otherwise occupied by the owner of the swimming pool. "Private swimming pool" includes permanent pools either above surface or subsurface and also portable or temporary pools which exceed eighty (80) square feet in area and/or thirty-six (36) inches in depth at the deepest point.

"Professional office" means the office of a member of a recognized profession. When conducted in a residential district, a professional office shall be incidental to the residential use and shall be conducted by a member of the family occupying the residential building. Such uses shall include the office of doctors or physicians, dentists, optometrists, ministers, architects, landscape architects, professional engineers, lawyers and such other similar professional occupations which may be so designated by the board of adjustment The issuance of a state or local license for regulation of any gainful occupation need not be deemed indicative of professional standing.

"Public drainageway" means the land reserved or dedicated for the installation of stormwater sewers or drainage ditches or required along a natural stream or watercourse for preserving the channel and providing for the flow of water to safeguard the public against flood damage, sedimentation and erosion.

"Quorum" means the majority of the full authorized membership of a municipal agency.

"Recreation."

1.

"Recreation, commercial" means recreation facilities operated as a business and open to the general public for a fee.

2.

"Recreation, private, noncommercial" means clubs or recreation facilities operated by a nonprofit organization and open only to bona fide members of such nonprofit organization.

"Religious use"means a church, temple, synagogue, mosque or other similar place of worship.

"Residential street" means a street between two intersecting streets, upon which an R district abuts, or where fifty (50) percent or more of the abutting street frontage is in predominantly residential use.

"Restaurant without live entertainment" means an establishment serving food and liquid refreshment. The liquid refreshment shall not include wine, beer or other types of alcoholic beverages.

"Resubdivision" means the further division or relocation of lot lines of any lot or lots within a subdivision previously made and approved or recorded according to law or the alteration of any streets or the establishment of any new streets within any subdivision previously made and approved or recorded according to law, but does not include conveyances so as to combine existing lots by deed or other instrument.

"Rooming house" means a structure containing a guest room or rooms let to two or more persons. For the purpose of regulating density, provisions for each two guests shall be counted as a dwelling unit where more than two roomers occupy a structure.

"Row house" means a structure containing a number of dwelling units, each separated by vertical interior unpierced walls.

"Sedimentation" means the deposition of soil that has been transported from its site of origin by water, ice, wind, gravity or other natural means as a product of erosion.

"Shelter, fallout" means any structure or part thereof constructed, erected, altered or enlarged for the purpose of furnishing protection from natural or man-made disasters. For the purposes of this title, a "fallout shelter" shall be considered as an accessory use.

"Sign" means a name, identification, description, display or illustration or any other visual display which is affixed to or painted or represented directly or indirectly upon a building, structure or piece of land and which directs attention to an object, product, place, activity, person, institution, organization or business. However, a "sign" shall not include any display of official court or public office notices nor any official traffic control device, nor shall it include the flag, emblem or insignia of a nation, state, county, municipality, school or religious group. A "sign" shall not include a sign located completely within an enclosed building, except for illuminated or animated signs within show windows. Each display surface of a sign shall be considered to be a "sign."

"Sign, advertising" means a sign which directs attention to a business, commodity, service or entertainment conducted, sold or offered elsewhere than on the premises where the sign is located.

"Sign, business" means a sign which directs attention to a business or profession conducted, or to a commodity, service or entertainment sold or offered, upon the premises where such sign is located or to which it is affixed.

"Sign, flashing" means a sign on which the artificial light is not maintained constant in intensity and/or color at all times when such sign is in use.

"Sign, gross advertising area of" means the entire space within a single continuous perimeter enclosing the extreme limits of such and in no case passing through or between any adjacent elements of same. However, such perimeter shall not include any structural or framing elements lying outside the limits of such sign and not forming an integral part of the display.

"Site plan" means a development plan of one or more lots on which is shown:

1.

The existing and proposed conditions of the lot, including but not necessarily limited to topography, vegetation, drainage, floodplains, marshes and waterways.

2.

The location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress, drainage facilities, utility services, landscaping, structures and signs, lighting and screening devices.

3.

Any other information that may be reasonably required in order to make an informed determination pursuant to an ordinance requiring review and approval of site plans by the planning board adopted pursuant to Article VI of P.L. 1975, c.291.

"Story" means that portion of a building included between the surface of any floor and the surface of the floor next above it, or if there is no floor above it, then the space between the floor and the ceiling next above it.

"Story, half" means a partial story directly under a gable, hip or gambrel roof, the wall plates of which on at least two opposite exterior walls are not more than four feet above the floor of such story; provided, however, that any partial story shall not be used for residence purposes.

"Street" means any street, avenue, boulevard, road, parkway, viaduct, drive or other way which is an existing state, county or municipal roadway; which is shown upon a plat heretofore approved pursuant to law; which is approved by official action as provided by this chapter; which is shown on a plat duly filed and recorded in the office of the county recording officer prior to the appointment of a planning board and the grant to such board of the power to review plats; and includes the land between the street lines, whether improved or unimproved and may comprise pavement, shoulders, gutters, curbs, sidewalks, parking areas and other areas within the street lines. For the purpose of this chapter, "streets" shall be classified as follows:

1.

"Arterial streets," those which are used for fast or heavy traffic.

2.

"Collector streets," those which carry traffic from minor streets to the major system of arterial streets, including the principal entrance streets of a residential development and streets for circulation within such a development.

3.

"Minor streets," those which are used primarily for access to the abutting properties.

4.

"Marginal access streets," streets which are parallel to and adjacent to arterial streets and highways and which provide access to abutting properties and protection from through traffic.

5.

"Alleys," minor ways which are used primarily for vehicular service access to the back or the side of properties otherwise abutting on a street.

"Structural alterations" means any changes in the supporting members of a building, such as walls, columns, beams or girders.

"Structure" means a combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above or below the surface of a parcel of land.

"Subdivision" means the division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development. The following shall not be considered subdivisions within the meaning of this ordinance if no new streets are created: divisions of land found by the planning board, or division committee thereof appointed by the chairman, to be for agricultural purposes where all resulting parcels are five acres or larger in size; divisions of property by testamentary or intestate provisions; divisions of property upon court order, including but not limited to judgments of foreclosure; consolidation of existing lots by deed or other recorded instrument; and the conveyance of one or more adjoining lots, tracts or parcels of land, owned by the same person or persons and all of which are found and certified by the administrative officer to conform to the requirements of the municipal development regulations and are shown and designated as separate lots, tracts or parcels on the tax map or atlas of the municipality. The term "subdivision" shall also include the term "resubdivision."

"Tract" means a designated parcel or area of land, including a lot, which is the subject of an application for development and which includes any contiguous portions of street rights-of-way in which the developer has property rights.

"Tutoring" means the teaching or instruction of academic or business subjects to not more than four students simultaneously.

"Variance" means the permission to depart from the literal requirements of the Zoning Article pursuant to Sections 47, 29.2b, 57c and 57d of P.L. 1975, c.291.

"Warehouse" means a building where raw materials or finished goods are stored, where the primary purpose of the facility is storage of product. Any building where storage of product is the primary use that contains dock doors on only one (1) side of the building shall be considered a warehouse, not a distribution center. Cold-storage warehouse facilities shall be considered a warehouse, not a distribution center.

"Yard" means an area, other than a court, located within and adjacent to the lot perimeter, which is unoccupied and unobstructed from the ground upward, except as permitted by this title.

"Zoning administrator" means the director of the department of planning and community development or his or her designee.

"Zoning map" means the zoning map or maps of the city, dated March 27, 1962, together with all amendments subsequently adopted.

"Zoning officer" means a city inspector empowered to make preliminary determinations regarding application of zone controls subject to review and approval of the zoning administrator.

"Zoning permit" means a document signed by the zoning administrator which is required by ordinance as a condition precedent to the commencement of a use or the erection, construction, reconstruction, alteration, conversion or installation of a structure or building and which acknowledges that such use, structure or building complies with the provisions of the municipal zoning ordinance or variance therefrom duly authorized by a municipal agency pursuant to Sections 47 and 57 of P.L. l975, c.29l.

(Ord. No. 5499, § 12, 11-23-2021; Ord. No. 4434, §§ 1, 5, 10-22-2013; prior code § 40-3)

The city council, planning board and zoning board of adjustment shall adopt and may amend reasonable rules and regulations, not inconsistent with the Municipal Land Use Law, P.L. 1975, c.291, or this chapter for the administration of their functions, powers and duties and shall furnish a copy thereof to any person upon request and may charge a reasonable fee, as established by Chapter 17.52 of this title for such copy. Copies of all such rules and regulations and amendments thereto shall be maintained in the office of the city clerk.

(Prior code § 40-4)

Every city 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 city agency shall be scheduled unless cancelled for lack of applications for development to process. The city agency may provide for special meetings at the call of the chairman or on request of any two of its members, which shall be held on notice to its members and the public public in accordance with the provisions of the Open Public Meetings Act P.L. 1975, c.231, and agency regulations. No action shall be taken at any meeting without a majority of the members of the municipal agency being present. All actions shall be taken by a majority vote of the members of the municipal agency present at the meeting except as otherwise required by Sections 17.04.140(C), 17.12.070 and 17.16.020(A)(4) of this title. Failure of a motion to receive the number of votes required to approve an application for development pursuant to the exceptional vote requirements of Sections 17.12.070 and 17.16.020(A)(4) shall be deemed an action denying the application. Nothing herein shall be constructed to contravene any statute providing for procedures for governing bodies.

(Prior code § 40-5)

A.

All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the provisions of the Open Public Meetings Act (P.L. 1975. c.231) and agency regulations.

B.

Minutes of every regular or special meeting shall be kept and shall include the names of all persons appearing and addressing the city agency and of the persons appearing by attorney, the action taken by the city 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 secretary of the city agency. 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 fee as established by Chapter 17.52 of this title for reproduction of the minutes for his or her use.

(Prior code § 40-6)

A.

The city agency shall hold a hearing on each application for development or adoption, revision or amendment of the master plan.

B.

The 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 ten (10) days before the date of the hearing during normal business hours in the office of the secretary of the city agency. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

C.

The officer presiding at the hearing or such person as he or she 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, P.L. 1953, c.38, shall apply.

D.

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.

E.

Technical rules of evidence shall not be applicable to the hearing, but the chairman of the agency may exclude irrelevant, immaterial or unduly repetitious evidence.

F.

The city agency shall provide for the verbatim recording of the proceedings by either stenographic, mechanical or electronic means. The city agency shall furnish a transcript or duplicate recording thereof on request to any interested party at his or her expense, which shall not exceed the maximum permitted in N.J.S.A. 2A: 11-15. Such request shall be in writing and shall be accompanied by prepayment of the estimated fee. Such transcript shall be certified in writing by the transcriber to be accurate.

G.

Decision on Application. Each decision on any application for development shall be reduced to writing and shall include findings of facts and conclusions based thereon.

1.

Reduction to writing shall be accomplished through:

a.

A resolution adopted at a meeting held within the applicable time period for taking action on the application for development provided in Section 17.28.130; or

b.

A resolution adopted at a meeting held not later than forty-five (45) days after the date of the meeting at which action to grant or deny approval was taken memorializing such action.

c.

Where the agency fails to adopt a resolution, any interested party may apply to Superior Court in a summary manner for an order compelling the 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.

2.

The following members shall be eligible to vote on the resolution:

a.

Where the action taken resulted from the failure of a motion to approve an application pursuant to Section 17.04.050, those members voting against the motion for approval shall be the members eligible to vote on the resolution.

b.

In all other circumstances, only the members who voted for the action taken shall be eligible to vote on the resolution.

3.

The following shall apply to adoption of the resolution:

a.

The vote on a resolution shall be deemed to be a memorialization of the action of the agency and not to be an action of the agency.

b.

The vote of a majority of those eligible members who are present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution.

c.

The date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings, and publications required.

H.

A copy of the decision shall be mailed by the secretary of the city agency within ten (10) days of the date of decision to the applicant, or if represented, then to his or her attorney, without separate charge, and to all who request a copy of the decision for a fee as specified by Chapter 17.52 of this title. A copy of the decision shall also be filed by the city agency in the office of the secretary of the city agency. The secretary of the city agency shall make a copy of such filed decision available to any interested party for a fee as specified in Chapter 17.52 of this title and available for public inspection at his or her office during city business hours.

I.

A brief notice of the decision shall be published in the official newspaper of the city. Such publication shall be arranged by the secretary of the city agency, provided that the applicant may in any case provide for publication of the decision. The applicant shall pay a fee as designated by Chapter 17.52 for publication of such notice, unless the applicant submits proof acceptable to the secretary of the city agency within ten (10) days of the decision that he or she has provided for the required publication. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the city or the applicant.

J.

A member of a municipal agency who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his or her absence from one or more of the meetings; provided, however, that such board member has available to him or her the transcript or recording of all of the hearing from which he or she was absent and certifies in writing to the board that he or she has read such transcript or listened to such recording.

(Prior code § 40-7)

Notices pursuant to Sections 17.04.090 and 17.04.100 of this chapter shall state the date, time and place of the hearing, the nature of the matters to be considered and, in the case of notices pursuant to Section 17.04.090 of this chapter, an identification of the property proposed for development by street address, if any, or by reference to tax account numbers as shown on the current tax duplicate in the city tax assessor's office and the location and times at which any maps and documents for which approval is sought are available pursuant to Section 17.04.070(B) of this chapter.

(Prior code § 40-8)

Notice pursuant to subsections A and B of this section shall be given by the applicant and shall be given ten (10) days prior to the date of the hearing.

A.

Notice of a hearing on an application for development shall be given except for:

1.

Applications for final approval pursuant to Section 17.28.050(H) of this title.

2.

Applications which do not involve:

a.

The creation of more than two lots:

b.

Any new street;

c.

Extension of any off-tract improvement;

d.

An increase in parking by twenty (20) spaces or thirty-five (35) percent of the existing space, whichever is the greater;

e.

A conditional use; or

f.

Relief from Chapter 17.36 of this title.

B.

Notice shall be given by the agency holding the hearing on the application for development in the official newspaper of the city at least ten (10) days prior to the date of the hearing.

C.

Notice shall be given by the applicant at least ten (10) days prior to the date of the hearing to the following parties, where applicable. An affidavit of proof of service demonstrating compliance with this requirement shall be filed with the city agency holding the hearing on the application for development at least two days prior to the date of the hearing.

1.

Owners of all real property located in the state and within two hundred (200) feet in all directions of the property which is the subject of such hearing. Notice shall be given by serving a copy thereof on each of the property owners as shown on the current tax duplicate of the municipality in which the property is located or his or her agent in charge of the property or by mailing a copy thereof by certified mail to the property owner at his or her address as shown on the current tax duplicate.

a.

Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. This requirement shall be deemed satisfied by notice to the condominium association, in the case of any unit owner whose unit has a unit above or below it, or horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within two hundred (200) feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation, without further notice to unit owners, co-owners or homeowners on account of such common elements or areas.

b.

A list of the names and addresses of such owners of property located within the city shall be made and certified from the current tax duplicates. by the city assessor or a fee of ten dollars ($10.00) within seven days of a written request of an applicant. The applicant shall be entitled to rely upon the information contained in such list of owners of property in the city, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding.

2.

Clerks of adjoining municipalities within two hundred (200) feet in all directions of the property which is the subject of such hearing. Notice shall be given by personal service or certified mail to the clerk of such a municipality.

3.

County planning board where the subject property is adjacent to an existing county road or proposed road shown on the official county map or on the county master plan, adjoining other county land or situated within two hundred (200) feet of a municipal boundary. Notice shall be given by personal service or certified mail to the county planning board.

4.

Commissioner of transportation where the subject property is adjacent to a state highway. Notice shall be given by personal service or certified mail to the commissioner of transportation.

5.

New Jersey Department of Community Affairs where the subject property exceeds one hundred fifty (150) acres or five hundred (500) dwelling units. Notice shall be given by personal service or certified mail to the Director of the Division of State and Regional Planning and shall include a copy of any maps or documents required to be on file with the city clerk pursuant to Section 17.04.070(B) of this chapter.

(Prior code § 40-9)

The planning board shall give:

A.

Public notice of a hearing on adoption, revision or amendment of the master plan. Such notice shall be given by publication in the official newspaper of the city at least ten (10) days prior to the date of the hearing.

B.

Notice by personal service or certified mail to the clerk of an adjoining municipality of all hearings on adoptions, revision or amendment of a master plan involving property situated within two hundred (200) feet of such adjoining municipality at least ten (10) days prior to the date of any hearing.

C.

Notice by personal service or certified mail to the county planning board of:

1.

All hearings on adoption, revision or amendment of the city master plan at least ten (10) days prior to the date of the hearing, and such notice shall include a copy of any proposed master plan or any revision or amendment thereto.

2.

The adoption, revision or amendment of the master plan not more than thirty (30) days after the date of such adoption, revision or amendment thereto.

(Prior code § 40-10)

Any notice made by certified mail pursuant to Sections 17.04.090 and 17.04.100 of this chapter shall be deemed complete upon mailing.

(Prior code § 40-11)

A.

Notice by personal service or certified mail shall be made to the clerk of an adjoining municipality of all hearings on the adoption, revision or amendment of a development regulation involving property situated within two hundred (200) feet of such adjoining municipality at least ten (10) days prior to the date of any such hearing.

B.

Notice by personal service or certified mail shall be made to the county planning board of all hearings on the adoption, revision or amendment of any development regulation at least ten (10) days prior to the date of the hearings and the adoption, revision or amendment of the city capital improvement program or city official map not more than thirty (30) days after the date of such adoption, revision or amendment. Any notice provided for hereunder shall include a copy of the proposed development regulation, the municipal official map or the city capital program or any proposed revision or amendment thereto, as the case may be.

C.

Notice of hearings to be held pursuant to this section shall state the date, time and place of the hearing and the nature of the matters to be considered. Any notice by certified mail pursuant to this section shall be deemed complete upon mailing.

(Prior code § 40-12)

The city clerk shall file with the county planning board, as soon after passage as possible, all development regulations, including this title and any amendments or revisions thereto, and file and maintain for reasonably easy public inspection copies of said regulations in the office of the clerk.

(Prior code § 40-13)

A.

In the event that a developer submits an application for development proposing a development that is barred or prevented, directly or indirectly, by a legal action instituted by any state agency, political subdivision or any other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health or welfare, the approving authority shall process such application for development in accordance with this title, and, if such application for development complies with the requirements of this title, the approving authority shall approve such application conditioned on removal of such legal barrier to development.

B.

In the event that development proposed by an application for development requires an approval by a governmental agency other than the approving authority, the approving authority shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that the approving authority shall make a decision on any application for development within the time period provided in this title or within an extension of such period as has been agreed to by the applicant unless the approving authority is prevented or relieved from so acting by the operation of law.

(Prior code § 40-15)

A.

The prospective purchaser, prospective mortgagee or any other person interested in any land which forms part of a subdivision or which formed part of such a subdivision three years preceding August 1, 1976, may apply in writing to the zoning administrator for the issuance of a certificate certifying whether or not such subdivision has been approved by the planning board. Such application shall contain a diagram showing the location and dimension of the land to be covered by the certificate and the name of the owner thereof.

B.

The zoning administrator shall make and issue such certificate within fifteen (15) days after the receipt of such written application and the fees therefor. Such officer, shall keep a duplicate copy of each certificate, consecutively numbered, including a statement of the fee charged, in a binder as a permanent record of his or her office.

C.

Each such certificate shall be designated a "certificate as to approval of subdivision of land" and shall certify:

1.

That there exists in the city a duly established planning board and that there is an ordinance controlling subdivision of land adopted under the authority of the Municipal Land Use Law, P.L. 1975, c.29l.

2.

Whether the subdivision, as it relates to the land shown in the application, has been approved by the planning board, and, if so, the date of such approval and any extensions and terms thereof, showing that the subdivision of which the lands are a part is a validly existing subdivision.

3.

Whether such subdivision, if the same has not been approved, is statutorily exempt from the requirement of approval as provided in N.J.S.A. 40:55D-7.

D.

The zoning administrator shall be entitled to demand and receive for such certificate issued by him or her a reasonable fee not in excess of those provided in N.J.S.A. 54:5-14 and 54:5-15. The fees so collected by the zoning administrator shall be paid by him or her to the city.

(Prior code § 40-16)

The city shall enforce this title through its zoning administrator. In case any building or structure is erected, constructed, altered, repaired, converted or maintained or any building, structure or land is used in violation of the ordinance codified in this chapter, the city and its officers, agents or an interested party, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises.

(Prior code § 40-17)

A.

If before final subdivision approval has been granted any person transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval, as owner or agent, any land which forms a part of a subdivision for which city approval is required by this title, such person shall be subject to a penalty not to exceed on thousand dollars ($1,000.00), and each lot disposition so made may be deemed a separate violation.

B.

In addition to the foregoing, the city may institute and maintain a civil action:

1.

For injunctive relief; and

2.

To set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of compliance has not been issued in accordance with Section 17.04.160 of this chapter.

(Prior code § 40-18)

The building inspector is given the duty, power and authority to enforce the provisions of this title. He or she shall examine all applications for permits and, with the approval of the zoning administrator, issue permits for the construction, alteration, enlargement and occupancy of all uses which are in accordance with the requirements of this title and all nonconforming uses existing at the time of passage of this title. The building inspector shall also record and file all applications for permits with accompanying plans and documents and make such reports to the board of adjustment and the planning board as may be required.

(Prior code § 40-19)

Building permits for a variance from the requirements of this title and for such conditional uses as may be enumerated in Chapter 17.36 of this title shall be issued only upon written order of the approving authority as the case may be.

(Prior code § 40-20)

Any person may file a complaint if there is any reason to believe a violation of this title exists. All such complaints must be in writing and shall be filed with the building inspector, who shall properly record such complaint and immediately investigate and report thereon to the zoning administrator.

(Prior code § 40-29)

In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure or land is used, in violation of this title or of any ordinance or regulation made under authority conferred hereby, the governing body or, with its approval, the building inspector or other proper official, in addition to other remedies, may institute any appropriate legal action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of the building, structure or land or to prevent any illegal act, conduct, business or use about such premises.

(Prior code § 40-30)