Fair Lawn City Zoning Code
ARTICLE VIII
Guaranties, Inspections and Off-Tract Improvements
§ 125-71 Fees.
A.
Every application for development shall be accompanied by a check payable to the Borough of Fair Lawn in accordance with the fee schedule set forth in Article X.
B.
The application charge is a flat fee to cover direct administrative expenses and is nonrefundable.
C.
Where one application for development includes several approval requests, the sum of the individual required fees shall be paid.
D.
It is the applicant's responsibility to arrange for a court reporter. The cost of taking testimony, transcribing it and providing a copy of the transcript to the Borough shall be at the expense of the applicant.
§ 125-72 Guaranties and inspections.
A.
Before recording of final subdivision plats or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65d, the approving authority may require and shall accept in accordance with the standards adopted by ordinance for the purpose of assuring the installation and maintenance of on-tract and off-tract improvements:
(1)
Performance guaranty. The furnishing of a performance guaranty in favor of the municipality in an amount not to exceed 120% of the cost of installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), for improvements which the approving authority may deem necessary or appropriate. Such improvements may include streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments, as shown on the final map and required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.), water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping.
(a)
Prior to the granting of final approval, the subdivider shall have installed or have furnished performance guaranties for the ultimate installation of the following:
[1]
Streets. All of the streets shall consist of a subbase of two-inch-thick dense graded aggregate base course, base of four-inch-thick bituminous stabilized base course (New Jersey Department of Transportation Mix I-2) and a surface course of two-inch-thick bituminous concrete surface course (New Jersey Department of Transportation Mix I-5). If design requirements determine that additional pavement thickness is required, the applicant shall design this with approval of the Borough Engineer. All construction is subject to inspection and approval by the Borough Engineer.
[2]
Street signs. Street name signs shall be placed at all street intersections within or abutting the subdivision. Such signs shall be of a type approved by the Borough and shall be placed in accordance with the standards of the Borough.
[3]
Curbs. All curbs shall be constructed with dimensions of six inches by eight inches by 18 inches by 10 feet with Class "B" concrete and subject to inspection and approval by the Borough Engineer.
[4]
Sidewalks. All sidewalks shall be constructed with four inches thickness, minimum four feet wide and made of Class "B" concrete and subject to inspection and approval by the Borough Engineer. Sidewalk thickness and width is to be determined by the Borough Engineer.
[5]
Depressed Curbs. Depressed curbs shall be a minimum of 12 in width and a maximum of 30 feet in width, except in the case of one- and two-family dwellings where the maximum width is 20 feet and constructed of Class "B" concrete and subject to inspection and approval by the Borough Engineer.
[6]
Shade Trees. Shade trees shall be at least two inches in caliper, placed 35 feet apart and located on the street line so as not to interfere with utilities or sidewalks and shall be of the following types: Norway Maple, Oriental Plane.
[7]
Topsoil protection. No topsoil shall be removed from the site or used as spoil. Topsoil moved during the course of construction shall be redistributed so as to provide at least six inches of cover to all areas of the subdivision and shall be stabilized by seeding or planting.
[9]
Water mains, culverts, storm sewers, sanitary sewers and hydrants. All such installations shall be properly connected with an approved system and shall be adequate to handle all present and probable future development and shall be in accordance with the Design Standards and Specifications of the Borough and subject to the inspection and approval of the Borough Engineer.
(b)
All of the above-listed improvements shall be subject to inspection and approval by the Borough Engineer who shall be notified by the developer at least 24 hours prior to the start of construction. No underground installation shall be covered until inspected and approved.
(c)
The Municipal Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guaranty, which itemized cost estimate shall be appended to each performance guaranty posted by the obligor.
(2)
Maintenance guaranty. There shall be provision for a maintenance guaranty to be posted with the governing body for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvement, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). In the event that other governmental agencies or public utilities will own the utilities to be installed or the improvements are covered by a performance or maintenance guaranty to another governmental agency, no performance or maintenance guaranty, as the case may be, shall be required by the municipality for such utilities or improvements.
B.
The time allowed for installation of the improvements for which the performance guaranty has been provided may be extended by the governing body by resolution. As a condition or as part of any such extension, the amount of any performance guaranty shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), as of the time of the passage of the resolution.
C.
If the required improvements are not completed or corrected in accordance with the performance guaranty, the obligor and surety, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected and the municipality may either prior to or after receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.).
D.
List of uncompleted or unsatisfactorily completed improvements.
(1)
Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements and the connection of same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Municipal Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the governing body and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.
(2)
The list prepared by the Municipal Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Municipal Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guaranty relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section.
E.
Approval or rejection of improvements.
(1)
The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Municipal Engineer or reject any or all of these improvements upon the establishment in the resolution of cause for rejection and shall approve and authorize the amount of reduction to be made in the performance guaranty relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guaranty, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the performance guaranty posted may be retained to ensure acceptable completion of all improvements.
(2)
If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection D of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Municipal Engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(3)
If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guaranty for the complete and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guaranty for complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(4)
In the event that the obligor has made a cash deposit with the municipality or approving authority as part of the performance guaranty, then any partial reduction granted in the performance guaranty pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guaranty.
F.
If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification, as set forth in this section shall be followed.
G.
Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the Municipal Engineer.
H.
The obligor shall reimburse the municipality for all reasonable inspection fees paid to the Municipal Engineer for the foregoing inspection of improvements, provided that the municipality may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees. For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Municipal Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.
I.
In the event that final approval is by stages or sections of development pursuant to Subsection a of Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.
J.
To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guaranty required pursuant to Subsection A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Municipal Engineer.
K.
Inspection and tests.
(1)
All improvements and utility installations shall be inspected during the time of their installation by the Borough Engineer. On-site private improvements relating to drainage, landscaping and circulation as shown on an approved final subdivision or site plan shall also be subject to inspection and approval by the Borough Engineer. The cost of said inspection shall be the responsibility of the owner, who shall deposit with the Borough Treasurer a fee in accordance with Article X.
(2)
In no case shall any improvements or utility installation be done without permission from the Borough Engineer. At least two working days' notice shall be given to the Borough Engineer prior to any construction so that the Borough Engineer or a qualified representative may be present at the time the work is to be done.
(3)
Streets shall not be paved with a wearing course until all heavy construction is completed. Shade trees shall not be planted until all grading and earthmoving is completed. The seeding of grass and the placing of the surveyor's monuments shall be among the last operations.
(4)
The Borough Engineer's office shall be notified after each of the following phases of the work has been completed the work may be inspected:
(5)
Inspection by the Borough of the installation of improvements and utilities shall not operate to subject Fair Lawn Borough to any future liability, including liability for claims or suits, that may arise because of defects or negligence during construction or at any time thereafter. The responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the owner and the owner's contractors, if any.
(6)
Upon the completion or substantial completion of all required utility improvements and connection to the public system, the obligor may notify the Borough Council, in writing, by certified mail in care of the Municipal Clerk, of the completion or substantial completion of the improvements and shall simultaneously send a certified copy of such notice to the Borough Engineer. Within 10 working days following receipt of the notice, the Borough Engineer shall inspect all the improvements of which such notice has been given and file a detailed report, in writing, with the Borough Council, indicating either approval, partial approval or rejection of such improvements with a statement of the reasons for any total or partial rejection. The costs of the improvements as approved or rejected shall be set forth.
L.
Conditions and acceptance of improvements. The approval of any application for development by the Borough shall in no way be construed as acceptance of any street or drainage system or any other improvement, nor shall such approval obligate the Borough in any way to exercise jurisdiction over such street or drainage system or other improvement. No improvement shall be accepted by the governing body unless and until all of the following conditions have been met:
(1)
The Borough Engineer shall have certified, in writing, that the improvements are complete and that they comply with the requirements of this chapter.
(2)
The final application for development shall have been approved by the Board.
(3)
The owner shall have filed with the Borough Council a maintenance guaranty in an amount equal to not more than 15% of the cost of installing the improvements, to run for a period of two years. The procedures and requirements governing such maintenance guaranty shall be identical with the procedures and requirements for a performance guaranty set forth in this chapter. The requirements for a maintenance guaranty may be waived by the Borough Council only if the Borough Engineer has certified that the improvements have been in continuous use for not less than two years from the date the Borough Engineer certified completion of such improvements and during this period the owner has maintained the improvements in a satisfactory manner.
(4)
The owner shall have provided an as-built plan and profiles of all utilities and roads (three black-and-white prints, plus a Mylar copy, to be sent to the Borough Engineer) with certification signed and sealed by a New Jersey licensed professional engineer as to the actual construction as approved by the Borough Engineer.
§ 125-73 Maintenance guaranty limitations.
A municipality shall not require that a maintenance guaranty required pursuant to Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53), be in cash or that more than 10% of a performance guaranty pursuant to that section be in cash. At the developer's option, some or all of a maintenance guaranty may be in cash or more than 10% of a performance guaranty in cash.
§ 125-74 Appeal procedure for disputed guaranty amounts.
The cost of the installation of improvements for the purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53), shall be estimated by the Municipal Engineer based on documented construction costs for public improvements prevailing in the general area of the municipality. The developer may appeal the Municipal Engineer s estimate to the governing body. The governing body shall decide the appeal within 45 days of receipt of the appeal in writing by the Municipal Clerk. After the developer posts a guaranty with the municipality based on the cost of the installation of improvements as determined by the governing body, legal action may be instituted within one year of the posting in order to preserve the right to a judicial determination as to the fairness and reasonableness of the amount of the guaranty.
§ 125-75 Performance guaranty acceptance.
The approving authority shall, for the purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53), accept a performance guaranty or maintenance guaranty which is an irrevocable letter of credit if it:
A.
Constitutes an unconditional payment obligation of the issuer running solely to the municipality for an express initial period of time in the amount determined pursuant to Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53);
B.
Is issued by a banking or savings institution authorized to do business in this state;
C.
Is for a period of time at least one year; and
D.
Permits the municipality to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of this section 30 days or more in advance of the expiration date of the letter of credit or such longer period in advance thereof as is stated in the letter of credit.
§ 125-76 Acceptance of certain public utilities.
If an approving authority includes as a condition of approval of an application for development pursuant to P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.), the installation of streetlighting on a dedicated public street connected to a public utility, then upon notification in writing by the developer to the approving authority and governing body of the municipality that the streetlighting on a dedicated public street has been installed and accepted for service by the public utility and that certificates of occupancy have been issued for at least 50% of the dwelling units and 50% of the floor area of the nonresidential uses on the dedicated public street or portion thereof indicated by section pursuant to Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the municipality shall, within 30 days following receipt of the notification, make appropriate arrangements with the public utility for and assume the payment of, the costs of the streetlighting on the dedicated public street on a continuing basis. Compliance by the municipality with the provisions of this section shall not be deemed to constitute acceptance of the street by the municipality.
§ 125-77 Off-tract improvements; determination and allocation of costs.
[Amended 5-22-2007 by Ord. No. 2079-2007]
Where the need for off-tract improvements for water, sewer, drainage and street improvements and for other improvements as provided by law are, in whole or in part, made necessary by the application, a determination of the pro-rata contribution of the applicant for said off-tract improvements shall be made.
A.
Allocation of costs; criteria in determining allocation. The allocation of costs for off-tract improvements as between the applicant, other property owners and the Borough or any one or more of the foregoing shall be determined by the board of jurisdiction, with the assistance of the appropriate Borough agencies, on the basis of the total costs of the off-tract improvements, the needs created by the application, population and land use projections for the general area of the applicant's property and other areas to be served by the off-site improvements, the estimated time of construction of the off-site improvements and the condition and periods of usefulness, which periods may be based upon the criteria of N.J.S.A. 40A:2-22. Requirements for off-tract improvements shall be consistent with N.J.S.A. 40:55D-42. In addition, the following criteria may also be considered, as well as any other reasonable criteria the board of jurisdiction feels are necessary to protect the health, safety and general welfare of the Borough:
(1)
Streets, curbs, sidewalks, shade trees, streetlights, street signs and traffic light improvements may also be based upon the anticipated increase of traffic generated by the application. In determining such traffic increase, the board of jurisdiction may consider traffic counts, existing and projected traffic patterns, quality of roads and sidewalks in the area and other factors related to the need created by the application and the anticipated benefit thereto.
(3)
Water supply and distribution facilities, including but not limited to fire hydrants, may also be based upon the added facilities required by the total anticipated water use requirements of the applicant and other properties in the general area benefitting therefrom.
(4)
Sewerage facilities may be based upon the proportion that the total anticipated volume of sewage effluent of the applicant's property and other properties connected to the new facility bears to the existing capacity of existing sewerage facilities, including but not limited to lines and other appurtenances leading to and servicing the applicant's property. Consideration may also be given to the types of effluent and particular problems requiring special equipment or added costs for treatment.
B.
Determination of cost of improvements. The cost of installation of the required off-tract improvements shall be determined by the board of jurisdiction with the advice of the Borough Engineer and appropriate Borough agencies.
C.
Manner of construction. When those estimates are received, the Mayor and Borough Council shall then decide whether the off-tract improvement is to be constructed:
D.
Amount of contribution.
(1)
If the improvement is to be constructed by the Borough as a general improvement, the applicant shall be required to provide a cash deposit to the Borough equal to the applicant's pro-rata fair share of the improvement.
(2)
If the improvement is to be constructed by the applicant, then it shall be consistent with the developer's agreement.
E.
Payment of allocated cost.
(1)
The estimated costs of the off-tract improvement allocated to the applicant if deposited in cash shall be paid by the applicant to the Borough Treasurer, who shall provide a suitable depository therefor, and such funds shall be used only for the off-tract improvements for which they are deposited or improvements serving the same purpose, unless such improvements are not initiated by the Borough within a period of 10 years from the date of payment, after which time said funds so deposited shall be returned, together with accumulated interest or other income thereon, if any.
(2)
In the event that the payment by the applicant to the Borough Treasurer provided for herein is less than its share of the actual cost of the off-tract improvements, and the developer has not completed its development, then it shall be required to pay its appropriate share of the cost thereof.
(3)
In the event that the payment by the applicant to the Borough Treasurer provided for above is more than its appropriate share of the actual cost of installation of the off-tract improvements, it or its successor or assigns shall be repaid an amount equal to the difference between the deposit and its share of the actual cost.
(4)
If the applicant shall deem that any of the amounts so estimated by the board of jurisdiction are unreasonable, it may challenge them and seek to have them revised in appropriate proceedings brought to compel subdivision or site plan approval.
(5)
If the applicant and the board of jurisdiction cannot agree with respect to the applicant's fair share of the actual cost of the off-tract improvement, no approval shall be granted; provided, however, that the applicant may challenge such determination and seek to have it revised in appropriate judicial proceedings in order to compel subdivision or site plan approval.
F.
Installation of improvements by applicant. At the discretion and option of the Borough and with the consent of the applicant, the Borough may enter into a contract with the applicant providing for the installation and construction of the off-tract improvements by the applicant upon contribution by the Borough of the remaining unallocated portion of the cost of the off-tract improvement.
G.
Compliance with design criteria. Should the applicant and the Borough enter into a contract for the construction and erection of the off-tract improvements to be done by the applicant, it shall observe all requirements and principles of this chapter in the design of such improvements.
H.
Resolution of cost-assessment conflicts. Where the applicant or any property owner cannot agree with the board of jurisdiction and the governing body as to the appropriate share of the cost of any off-tract improvement or the manner in which it was assessed as a local or general Borough improvement, that dispute shall be resolved in a court of appropriate jurisdiction.