Fair Haven City Zoning Code
§ 30-3.3
Provisions Applicable to Both the Planning Board and Zoning Board of Adjustment.
[Ord. B-417 § 3.3, 1998; 2002 Code § 16.12.030; amended 5-13-2024 by Ord. No. 2024-05]
a.
Meetings.
1.
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.
2.
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 municipal regulations and N.J.S.A. 10:4-6 et seq.
3.
No action shall be taken at any meeting without a quorum being present.
4.
All action shall be taken by a majority vote of members of the Municipal Agency present at the meeting except as otherwise required by N.J.S.A. 40:55D-32, -34, -62, -63 and subsections -17e, -26a and b and -70d. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for Governing Bodies.
5.
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 requirements of the Open Public Meeting Law, N.J.S.A. 10:4-6 et seq.
6.
An executive session for the purpose of discussing and studying any matters to come before the agency shall not be deemed a regular or special meeting within the meaning of N.J.S.A. 40:55D-I et seq.
b.
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 reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Administrative Officer (Planning Board or Board of Adjustment Secretary). 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 in an amount sufficient to cover the cost of such reproduction of the minutes for his use.
c.
Hearings.
1.
Required Hearings. The Planning Board and Zoning Board of Adjustment shall hold a hearing on each application for development.
2.
Rules for Conducting Hearings. The Planning Board and Board of Adjustment shall make rules governing the conduct of hearings before such bodies which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or this chapter.
3.
Filing of Documents. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the Administrative Officer (Planning Board or Board of Adjustment Secretary). The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
4.
Oaths. 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, N.J.S.A. 2A:67A-1 et seq., shall apply.
5.
Testimony. 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.
6.
Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
7.
Verbatim Recording. The Municipal Agency shall provide for the verbatim recording of the proceedings by either a stenographer or by 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; provided that the Borough Council may provide by ordinance for the municipality to assume the expense of any transcripts necessary for approval to the Borough Council pursuant to N.J.S.A. 40:55D-17 of decisions by the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70d; up to a maximum amount as specified by the ordinance.
8.
Transcript Charge. The Municipal Agency in furnishing a transcript or tape of the proceeding to an interested party at his expense shall not charge such interested party more than the actual cost of preparing the transcript or tape. Transcripts shall be certified in writing by the transcriber to be accurate.
9.
Voting Eligibility. A member or alternate member of a Municipal Agency who was absent for one or more of the meetings at which a hearing was held or was not a member of the Municipal Agency at the time 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 or alternate member has available to him or her the transcript or recordings of all of the hearings from which he or she was absent or was not a member, and certifies in writing to the Municipal Agency that he or she has read such transcript or listened to such recording.
d.
Notice Requirements for Hearing. Whenever public notice of a hearing is required on an application for development, the applicant shall give notice thereof at least 10 days prior to the date of the hearing in accordance with the following:
1.
Public notice of hearing on an application for development shall be given for all the following:
(a)
Appeal or variance pursuant to N.J.S.A. 40:55D-70;
(b)
Directive for issuance of a building permit pursuant to N.J.S.A. 40:55D-34 or N.J.S.A. 40:55D-36;
(c)
Conditional uses pursuant to N.J.S.A. 40:55D-67;
(d)
Preliminary major subdivision plats;
(e)
Preliminary major site plans;
(f)
Extension of approvals for five or more years pursuant to N.J.S.A. 40:55D-52;
(g)
Modification or elimination of a significant condition or conditions in a memorializing resolution in any situation wherein the application for development for which the memorializing resolution is proposed for adoption required public notice;
(h)
Appeals of determinations of administrative officers pursuant to N.J.S.A. 40:55D-70a;
(i)
Requests for interpretation pursuant to N.J.S.A. 40:55D-70b.
2.
Public notice shall be given by publication in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough.
3.
Notice of a hearing requiring public notice shall be given to the owners of all real property as shown on the current tax duplicate or duplicates located within 200 feet in all directions of the property which is the subject of such hearing provided that this requirement shall be deemed satisfied by notice to the (1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) horizontal property regime, in the case of any co-owner whose apartment has, an apartment above or below it.
Notice shall be given by: (1) serving a copy thereof on the owner as shown on the current tax duplicate or his agent in charge of the property, or (2) mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate. A return receipt is not required.
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. Notice to a condominium association, horizontal, property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 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.
4.
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, which notice shall be in addition to the notice required to be given to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.
5.
Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on all applications 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, adjoining other County land or situated within 200 feet of a municipal boundary.
6.
Notice shall be given by personal service or certified mail to the Commissioner of the New Jersey Department of Transportation of a hearing on any application for development of property adjacent to a State highway.
7.
Notice shall be given by personal service or certified mail to the State Planning Commission of any 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 Administrative Officer pursuant to N.J.S.A. 40:55D-10b.
8.
Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan requiring public notice pursuant to paragraph d1 of this subsection shall be given, in the case of a public utility, cable television company, or local utility which possesses a right-of-way or easement within the Borough and which has registered with the Borough in accordance with this subsection, by (1) serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility or (2) mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.
Every public utility, cable television company, and local utility interested in receiving notice pursuant to this subsection may register with the Borough if the public utility, cable television company, or local utility has a right-of-way or easement in the Borough. The registration shall remain in effect until revoked by the public utility, cable television company, or local utility or by its successor in interest.
The Administrative Officer shall adopt a registration form and shall maintain a record of all public utilities, cable television companies, and local utilities which have registered with the municipality pursuant to this subsection. The registration form shall include the name of the public utility, cable television company, or local utility and the name, address, and position of the person to whom notice shall be forwarded, as required pursuant to this subsection. The information contained therein shall be made available to any applicant, as provided in N.J.S.A. C.40:55D-12.
The Borough shall impose a registration fee of $10 on any public utility, cable television company, or local utility which registers to receive notice pursuant to this subsection.
9.
The applicant shall file an affidavit of proof of service with the Municipal Agency holding the hearing on the application for the development in the event that the applicant is required to give notice pursuant to N.J.S.A. 40:55D-12 and of this chapter.
10.
Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.
11.
Form of Notice. All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing, the nature of the matters to be considered and identification of the property proposed for development by street address, if any, and reference to lot and block numbers as shown on the current tax duplicate in the Borough Tax Assessor's office and the location and times at which any maps and documents for which approval is sought are available for public inspection as required by law.
12.
Notice pursuant to paragraphs d4; d5; d6; and d7 of this subsection shall not be deemed to be required, unless public notice pursuant to paragraphs d1 and d2 of this subsection are required.
13.
List of Property Owner Furnished. Upon the written request of an application, the Tax Assessor shall, within seven days, make and certify a list from the current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to this chapter. The applicant shall be entitled to rely upon the 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 fee shall be charged for such list.
e.
Decisions. 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; or
(b)
A resolution adopted at a meeting held not later than 45 days after the date of the meeting at which action to grant or deny approval was taken memorializing the 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 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. If only one member who voted for the action attends the meeting at which the resolution is presented for adoption, the resolution may be adopted upon the vote of that member.
(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.
4.
Copies of the decision shall be distributed by the Administrative Officer (Planning Board or Board of Adjustment Secretary) as follows:
(a)
A copy shall be mailed within 10 days of the date of decision to the applicant, or if represented then to his attorney, without separate charge.
(b)
A copy shall be filed in the office of the Administrative Officer and be made available for public inspection during reasonable hours.
(c)
A copy shall be made available to any interested party for a reasonable fee in an amount sufficient to cover the cost of such copy.
5.
A brief notice of the decision shall be published in the official newspaper(s) of the Borough.
(a)
Such publication shall be arranged and proof of publication shall be obtained by the Administrative Officer (Planning Board or Board of Adjustment Secretary). Nothing herein shall be construed as preventing the applicant from arranging such publication is he so desires. The period of time in which an appeal of the decision may be made shall run from the first publication of the notice whether arranged by the Borough or the applicant.
(b)
Such notice shall be published within 30 days of the date of decision, or 20 days of the date of mailing of a copy of the decision by the Administrative Officer (Planning Board or Board of Adjustment Secretary), whichever is later, or within such other appropriate period as may be determined by the Municipal Agency at the time of decision.
(c)
Failure to publish as herein required shall render any approvals null and void.
f.
Conditional Approvals.
1.
In the event that a developer submits an application for development proposing a development that is barred or prevented, directly or indirectly, by legal action instituted by any State agency, political subdivision or 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 and welfare, the municipal agency shall process such application for development in accordance with the provisions of N.J.S.A. 40:55D-1 et seq. and this chapter, and, if such application for development complies with the provisions of this chapter, the Municipal Agency shall approve such application conditioned on removal of such legal barrier to development.
2.
In the event that development proposed by an application for development requires an approval of a governmental agency other than the Municipal Agency, the Municipal Agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency; provided that the Municipal Agency shall make a decision on any application for development within the time period provided in this chapter and N.J.S.A. 40:44D-1 et seq. or within an extension of such period as has been agreed to by the applicant unless the Municipal Agency is prevented or relieved from so acting by the operation of law.
3.
Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3, in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the Municipal Agency shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time period.
4.
The Municipal Agency may impose such other conditions as it deems appropriate.
5.
In all cases the Municipal Agency shall include a condition of approval setting forth the time within which all conditions of approval must be satisfied by the applicant. Failure of the applicant to meet all conditions of approval within the time specified or within such extensions thereof as the Municipal Agency may, from time to time, grant upon the request of the applicant shall render any approvals null and void.
6.
Tolling of Running of Period of Approval. In the event that, during the period of approval heretofore or hereafter granted to an application for development, the developer is barred or prevented, directly or indirectly, from proceeding with the development otherwise permitted under such approval by a legal action instituted by any State agency, political subdivision or 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 and the developer is otherwise ready, willing and able to proceed with the development, the running of the period of approval shall be suspended for the period of time the legal action is pending or such directive or order is in effect.
g.
Payment of Taxes. Pursuant to the provisions of N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-65, every application for development submitted to the Planning Board or to the Zoning Board of Adjustment shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of such application; or if it is shown that taxes or assessments are delinquent on the property, any approvals or other relief granted by either Board shall be conditioned upon either the prompt payment of such taxes or assessments, or the making of adequate provision for the payment thereof in such manner that the municipality will be adequately protected.
h.
Time for Decision. After the date in appeal is taken from the decision of a municipal officer or the submission of a complete application for development to the Administrative Officer, the approving authority shall render its decision within the maximum number of days as specified below or within such further time as may be consented to by the applicant. Where more than one type of application is involved, the longer time period shall apply.
Type of Application | Time Period (days) |
|---|---|
Site plans | |
Minor | 45 |
Preliminary approval (10 acres or less, 10 units or less) | 45 |
Preliminary approval (more than 10 acres or 10 units) | 95 |
Final approval | 45 |
Subdivisions | |
Minor | 45 |
Preliminary approval (10 lots or less) | 45 |
Preliminary approval (more than 10 lots) | 95 |
Final approval | 45 |
Conditional use authorization | 95 |
Variance | 120 |
Appeal from the decision of a municipal officer | 20 |
Direction for issuance of a building permit | 120 |
i.
Separation of Applications. A developer whose proposed development requires a variance or direction of the issuance of a permit may elect to submit a separate application requesting the variance or direction of the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan, or conditional use. The separate granting of the variance or direction of the issuance of a permit shall be conditioned upon the granting of all required subsequent approvals by the same approving authority. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided for the approval in question, and any special vote shall not be required. In the event that the developer elects to submit separate consecutive applications, the time period for granting or denying each separate application shall be as provided in paragraph h of this subsection.
j.
Time for Exercise of Variance. Any variance from the terms of any ordinance hereafter granted permitting the erection or alteration of any building, structure or structures or permitting a specified use of any premises, shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by the variance, or unless such permitted use has actually been commenced within 12 months from the date of entry of the decision provided, however, that the running of the period of limitation herein provided shall be suspended from the date of filing an appeal from the decision to the Borough Council or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding. Where the variance is part of a subdivision or site plan approval, the period of limitation shall coincide with the approval specified in Section 30-4 of this chapter.