Fairview City Zoning Code
ARTICLE VII
Administration, Enforcement and Fees
§ 25-701.1 Administrative Officer: Receiving Applications for Development; Issuing Approval Certificates.
[Ord. No. 98-6 § 2, Art. VII § 15-43A]
The administrative officer, for the purpose of the enforcement of this chapter, shall be the Zoning Officer, who is hereby given the duty, power and authority to respectively enforce the provisions of this chapter under the applicable powers and authority as provided by law. The Zoning Officer shall examine all applications under his or her jurisdiction and shall approve all required inspections to ensure compliance with this chapter.
§ 25-701.2 Administration.
[Ord. No. 98-6 § 2, Art. VII § 15-43B]
a.
Subdivisions. Any owner of land lying within the Borough shall, prior to subdividing or resubdividing of land as defined in this chapter, and before conveying legal or equitable title to such subdivision or any part thereof, apply to the Planning Board for review and approval of the subdivision plat pursuant to the provisions of this chapter.
b.
Site Plan. Prior to the issuance of any construction permit or certificate of occupancy, as the case may be, for any new structure, addition to, or alteration of an existing structure a site plan shall be submitted to the Planning Board, or to the Board of Adjustment as provided by statute, for its review and approval.
§ 25-701.3 Enforcement.
[Ord. No. 98-6 § 2, Art. VII § 15-43C]
The rules, regulations and standards contained in this chapter shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Borough. Any action taken by the Borough under the terms of this chapter shall give primary consideration to the purposes and provisions of this chapter and to the welfare of the entire community. Moreover, if an applicant or his agent can clearly demonstrate that, because of the peculiar conditions pertaining to his land, the literal enforcement of one or more of these regulations is impractical or will exact undue hardship, the appropriate municipal agency may permit such exceptions or exceptions as may be reasonable and within the general purpose and intent of the rules, regulations and standards established by this chapter.
§ 25-702 ENFORCEMENT OFFICER.
[Ord. No. 98-6 § 2, Art. VII § 15-44]
a.
It shall be the duty of the Zoning Officer to administer and enforce the provisions of this chapter and, in so doing, to inspect periodically the structures and land in the Borough, to investigate violations of the chapter coming to his attention, to serve notice upon property owners to abate any condition found to exist in violation of any provisions(s) of this chapter, to sign complaints where justified and to cooperate with other Borough officials in the prosecution of violators. The enumeration herein of the duties of the Construction Code Officer and Zoning Officer shall not mean that other officials and employees shall be relieved of their obligation to enforce this chapter. The Construction Code Enforcement Official and Zoning Officer or other Borough employees authorized by the Borough shall have the right to inspect any lot or building at reasonable times for the purpose of investigating possible violations of this chapter.
b.
If the Zoning Officer finds any substantial deviation from any approved plans, he shall notify the permittee and the Borough Clerk in writing of the deviation. The Zoning Officer and the Borough may take such action as is provided in this chapter.
§ 25-703 CONSTRUCTION PERMITS AND PLANS; CERTIFICATES OF OCCUPANCY.
[Ord. No. 98-6 § 2, Art. VII § 15-45]
No construction permit and no certificate of occupancy shall be issued by the Zoning Officer except upon application therefor in conformity with all the provisions of this chapter. No sign erection permit shall be issued by the Zoning Officer except upon application therefor in conformity with the terms of this chapter.
§ 25-704.1 Stop Orders.
[Ord. No. 98-6 § 2, Art. VII § 15-46A]
In the event that a permittee shall fail to comply with any condition or regulation or provisions of an approved plan, the Borough Engineer or the Zoning Officer may issue a stop order on all construction work within the area encompassed by the approved plan and which order may include requirements for the prompt correction of adverse conditions. Thereafter, no construction work of any type shall be performed within the area of the approved plan except such work as is in accordance with the requirements of the Borough official as set forth in the order or in accordance with the approved plan.
§ 25-704.2 Permit Revocation.
[Ord. No. 98-6 § 2, Art. VII § 15-46B]
In the event of a failure to comply with any condition of an approved soil erosion and sediment control plan, tree removal plan or steep slope disturbance plan, upon recommendation of the Borough Engineer or Zoning Officer, the Borough may revoke any construction permit for any property upon which such noncompliance occurs or for any property affected by such noncompliance. The Borough may also seek to enjoin the violation, or take such other steps as permitted by law.
§ 25-704.3 Revocation of Construction Permit or Certificate of Occupancy.
[Ord. No. 98-6 § 2, Art. VII § 15-46C]
In the event of a failure to comply with any condition of final site plan approval, the Zoning Officer or Borough Engineer on his or her initiative, may revoke the construction permit or certificate of occupancy, as the case may be, and seek to enjoin the violation, or such other steps as permitted by law.
§ 25-705.1 General.
[Ord. No. 98-6 § 2, Art. VII § 15-47A]
Any person aggrieved by any decision or action of the Zoning Officer or the Borough Engineer under this chapter, may appeal to the Borough Council in writing, such appeal to be filed with the Borough Clerk, within 10 days from the date of the decision or action complained of. The appellant shall be entitled to a hearing before the Borough Council, which shall fix a date therefor not less than 20 days nor more than 30 days from the date of the decision appealed from. Upon such hearing or within 10 days thereafter the Borough Council shall affirm, alter or rescind the decision or action complained of with written findings and conclusions.
§ 25-705.2 Appeal.
[Ord. No. 98-6 § 2, Art. VII § 15-47B]
Where the Zoning Officer or the Borough Engineer has issued a stop order or has revoked a construction permit, the permittee shall have a right to appeal the determination to the Borough Council. The notice of appeal shall be filed with the Borough Clerk within 10 days of the date of the action of the Borough Engineer or the Zoning Officer in issuing the stop work order or revocation of the construction permit. The Council shall, upon receipt of the notification, provide a hearing to the permittee within 10 days of the date of the filing of the appeal and shall render its decision upon the conclusion of the hearing and in no case later than seven days from termination of the hearing.
§ 25-706 PENALTY.
[Ord. No. 98-6 § 2, Art. VII § 15-48]
If any person violates any of the provisions of this chapter or who fails to comply with any of the requirement thereof or who erects, raises, moves, extends, enlarges, alters or demolishes any structure in violation of any detailed statement or plan submitted hereunder, or who puts into use any lot or premises in violation of any detailed statement or plans submitted hereunder or who refuses reasonable opportunity to inspect any premises shall, upon conviction thereof by any court authorized by law to hear and determine the matter, be liable to a fine of not more than $1,000, or to imprisonment for a term of not more than 90 days, or both, as such court in its discretion may impose. Each day during or on which a violation occurs or continues shall be deemed a separate offense.
§ 25-707.1 General.
[Ord. No. 98-6 § 2, Art. VII § 15-49A; Ord. No. 01-4 § 1; Ord. No. 05-14 § 1]
a.
Every application for development shall be accompanied by a payment of a fee in accordance with a schedule hereinafter set forth. The application charge is a flat fee to cover direct administrative expenses and is not refundable.
b.
Where one application for development includes several approval requests, the sum of the individual required fees shall be paid.
c.
No fees shall be returned to the applicant after public hearing has commenced.
d.
If any applicant desires a court reporter, the cost of taking testimony and transcribing it and providing a copy of the transcript for the board hearing the application shall be at the expense of the applicant, who shall arrange for the reporter's attendance.
e.
Schedule of application fees to be paid at the time of the filing of the application.
Submission | Application Fee | |
|---|---|---|
Sketch Plat for Classification/Concept Plan | $450 | |
Minor Subdivision Plat | $450 | |
Major Subdivision/Preliminary | $450 + $25 per lot | |
Major Subdivision/Final | $50 + $25 per proposed lots | |
Site Plan | ||
1. | For each 20,000 square feet of lot area up to 3 acres | $450 |
2. | For each acre over 3 acres | $450 |
3. | For each 1,000 square feet of floor area up to 10,000 square feet | $450 |
4. | For each 1,000 square feet of floor area over 10,000 square feet | $450 |
Processing Fee for all applications requiring a variance, site plan approval or subdivision | $100 | |
Variances | ||
1. | Appeals in accordance with N.J.S.A. 40:55D-70a | $450 |
2. | Interpretations in accordance with N.J.S.A. 40:55D-70b | $450 |
3. | Hardship applications in accordance with N.J.S.A. 40:55D-70c | $450 |
4. | Conditional Use | $450 |
5. | Use in accordance with N.J.S.A. 40:55D-70d | $650 |
Amendments | ||
1. | No expansion of building or outside facility | $200 |
2. | If expansion is proposed fees established for site plans apply | See site plan fees |
Appeals pursuant to N.J.S.A. 40:55D-34 and 55D-36 | $550 | |
§ 25-707.2 Inspection Fees.
[Ord. No. 98-6 § 2, Art. VII § 15-49B]
a.
In addition to the fees set forth for the review of subdivision plans and site plans there shall also be an inspection fee of 2.5% of the estimated cost of improvements on site plans and an inspection fee of 5% of the estimated cost of the improvements for subdivision as estimated by the Borough Engineer and payable at the time of the commencement of construction. This charge shall be for the purpose of defraying the costs of inspections of the installation of the improvements required by the Planning Board.
b.
All permits, determinations, resolutions or certificates of approval are subject to the payment of all fees required in this section.
c.
All applicants or appellants other than a department, board or agency of the Borough shall pay the applicable fees unless such fee is specifically waived by the Borough Council. Such waivers shall only be considered for nonprofit organizations.
§ 25-708 PAYMENT FOR PROFESSIONAL SERVICES; ESCROW DEPOSITS.
[Ord. No. 98-6 § 2, Art. VII § 15-50]
In addition to the filing fees and any other fees or payments required by this chapter, the applicant for any development application, appeal or other matter pursuant to this chapter shall be responsible to reimburse the Borough for payments made to professionals for services rendered to the Borough related to such application, appeal or other matter. The following provisions shall apply to such payments.
a.
Initial Deposits for Professional Services. The following escrow fees shall be collected by the Secretary at the time of the filing of the application. These fees are to be applied for the review of applications by the professional staff/consultants and shall include all office review, phone correspondence, preparation of reports, conferences, appearance at meetings, or other purposes under the provisions of this chapter or the Municipal Land Use Law. For purposes of this section, professional staff shall include the Borough Planner and Borough Engineer, and such other professionals as may be deemed necessary by the Planning Board or the Zoning Board of Adjustment to review an application. Deposits shall be paid by personal check, certified check, cashier's check, or bank money order. In the case of proposals requiring a combination of approvals, such as subdivision, site plan and/or variance(s), the applicant shall deposit an amount equal to the sum of the deposits required for each application. In the event that there is no new schedule of fees filed by the professionals, the schedule previously filed by the professional shall prevail.
b.
Subsequent Deposits for Professional Services. In the event that the amount in the individual account for professional services should become depleted to less than 25% of the initial deposit required by this chapter, and if the Secretary determines that additional funds are necessary to cover the cost of processing the application, the Secretary shall notify the applicant immediately of such depletion. Upon receiving such notice, the applicant shall deposit additional funds as necessary to make the amount in the account not less than 50% of the initial deposit required by this chapter for professional services.
c.
Failure to Maintain Deposit for Professional Services. If the required funds for professional services are not deposited in a timely manner, the Secretary shall notify the Borough agency having jurisdiction over the application, and shall send copies of the notification to the Borough Finance Director. Upon receipt of the copy of notification, the Finance Officer shall immediately inform the Mayor and Council of the notification. No further action shall be taken on the application unless the deposits have been made by the applicant as required above. In the event that the time for action by a Borough agency as required by this chapter shall expire prior to the payment of the required deposits, the reviewing agency shall have the option of dismissing the application.
d.
Vouchers for Payment of Professional Services. All payments charged to a deposit required by this section shall be made pursuant to written monthly vouchers for each application from the professional(s) stating the hours spent, the hourly rate and the expenses incurred. The Borough shall render a written final accounting to the applicant on the uses to which the deposit was put.
e.
Procedure for Payment of Vouchers; Appeals of Charges. The following procedure shall apply to the payment of vouchers for professional services pursuant to this section:
1.
Upon receipt of any vouchers for payment of professional services, the Secretary shall submit a copy of the voucher to the applicant.
2.
Within 14 days of the mailing of the vouchers, the applicant may request in writing a hearing on the reasonableness of the charges contained in the vouchers. Any such hearing shall be held by the Borough agency with jurisdiction over the application.
3.
In the event the applicant requests such hearing, no payments shall be made pursuant to the disputed voucher(s) until the Borough agency shall have ruled on the appeal. If the Borough agency find in favor of the applicant, payment pursuant to the voucher(s) shall be adjusted accordingly.
4.
All vouchers for payment of professional services pursuant to this section shall be submitted to the Borough agency for whom the services were performed. The Borough agency shall at a public hearing approve or deny payment of the vouchers. No voucher shall be denied payment without giving the professional submitting the voucher an opportunity to be heard concerning the reasonableness of the voucher.
5.
If no hearing is requested as outlined above, or if the Borough agency finds in favor of the professional, payment shall be made pursuant to the voucher.
6.
If approved by the Borough agency, the voucher shall be directed to the Borough Finance Director for reimbursement to the professional for services rendered.
§ 25-709 PERFORMANCE AND MAINTENANCE GUARANTEES.
[Ord. No. 98-6 § 2, Art. VII § 15-51; New]
a.
Before execution of the final subdivision plat, as a condition of final site plan approval, or as a condition to the granting of a development approval pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall have installed all improvements required by the Planning Board, except that the Borough Council may require and shall accept in accordance with the standards adopted herein for the purpose of assuring the installation and maintenance of on-tract improvements, the following:
1.
The furnishing of a performance guarantee in favor of the Borough in an amount not to exceed 120% of the cost of installation for all improvements not installed prior to final approval.
2.
A maximum of 10% of the total guarantee required shall be in cash. All of the improvements shall be subject to inspection and approval by the Borough Engineer who shall be notified by the developer at least 48 hours prior to the start of the construction. No underground installations shall be covered until inspected and approved.
b.
Provision for a maintenance guarantee to be posted with the Borough Council for a period not to exceed two years after final acceptance of the improvements, in an amount not to exceed 15% of the cost of the improvement.
c.
The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of installation as determined as of the time of the passage of the resolution.
d.
If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable cost of the improvements not completed or corrected and the Borough may either prior to or after the receipt of the proceeds thereof complete such improvements.
e.
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 Borough Council in writing, by certified mail, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection a of this section, a list of all uncompleted or unsatisfactory completed improvements. A copy of the request shall be sent to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Borough Engineer shall inspect all improvements covered by the request and shall file a written list and report with the Borough Council, with a copy to the obligor, not later than 45 days after the receipt of the obligor's request.
2.
The list prepared by the Borough 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, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report shall also identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection a of this section.
f.
1.
The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of these improvements, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the performance guarantee posted may be retained to ensure completion of all acceptability of all acceptability of all improvements.
2.
In the event that the obligor has made a cash deposit with the Borough or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this Subsection f shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.
g.
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.
h.
Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination or lack of a determination of the Borough Council or Engineer.
i.
The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements; provided that the Borough 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 (C. 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 Borough 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 Borough Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.
j.
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 (C. 40:55D-38), the provisions of this section shall be applied by stage or section.
k.
To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee 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 Borough Engineer.
l.
Building permits in a subdivision or site plan or approved subsection thereof, except for model buildings in the first subsection, will be issued only when all improvements, with the exception of the following, shall have been installed to serve all lots and structures within the subdivision or site plan or approved subsection thereof and approved by the Borough Engineer:
m.
Permits for model buildings in the front subsection or 10% of the total number to be built in the subsection, whichever is less, not to exceed six, may be issued on commencement of construction of improvements.
n.
Installation of sidewalks on a lot shall be completed prior to the issuance of a certificate of occupancy for that lot.
o.
Notwithstanding any provision of this chapter to the contrary, upon completion of all improvements but prior to acceptance by the Borough Council of such improvements and prior to the release of any performance guarantee which may have been posted, deeds must be received, free and clear of all mortgages and encumbrances, for all fee and other property interests and improvements to be conveyed to the Borough.
p.
A site plan bond shall be posted prior to earth disturbance.
§ 25-710 DEVELOPER'S AGREEMENT.
[Ord. No. 98-6 § 2, Art. VII § 15-52]
a.
Within 90 days of the adoption of a resolution granting final subdivision approval and prior to the execution of the final subdivision plat, there shall be executed and delivered to the Borough an agreement between the developer and the Borough incorporating all of the terms and conditions of final approval. The agreement shall be drawn by the Borough and shall be executed by the owner and developer of the subdivision.
b.
In the event that all of the improvements have not been installed within the time period set forth in the developer's agreement, the developer may request, in writing, to the Borough Council, a one year extension of the time in which to complete all improvements. No more than two such extensions will be considered unless the developer's agreement shall be accompanied by an application fee of $300 to cover the engineering and legal fees associated with the processing of the application.
§ 25-711 OFF-TRACT IMPROVEMENTS OTHER THAN SANITARY SEWER AND WATER IMPROVEMENTS.
[Ord. No. 98-6 § 2, Art. VII § 15-53]
a.
Pursuant to the powers established in N.J.S.A. 40:55D-42, the following standards are hereby promulgated with respect to determining the proportionate or pro-rata share of an applicant for a required off-tract improvement. Prior to the granting of final approval of a subdivision, the applicant shall have installed or made cash payments, in the manner provided for below with respect to the immediate or ultimate installation of any required off-tract improvement.
1.
Allocation of Costs; Criteria in Determining Allocation. The allocation or 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 Planning Board with the assistance of the appropriate Borough agencies on the basis of the total cost of the off-tract improvements, the increase in market values of property affected and any other benefits conferred, 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-tract improvements, the estimated time of construction of the off-tract improvements and the condition and periods of usefulness, which periods may be based upon the criteria of N.J.S.A. 40A:22-2. The following criteria may also be considered as well as any other reasonable criteria which would aid in the determination:
(a)
Street, curb, gutter, sidewalk, shade trees, street lights, street signs and traffic light improvements may also be based upon the anticipated increase of traffic generated by the application and the anticipated benefit thereto.
(b)
Drainage facilities may also be based upon or be determined by the drainage created by or affected by any particular land use considering: (a) the percentage relationship between the acreage of the application and the acreage of the total drainage basin; (b) the use of a particular site and the amount of area to be covered by impervious surfaces on the site itself; and (c) the use, condition or status of the remaining area of the drainage basin.
2.
Improvements to be Construed at the Sole Expense of the Applicant. In cases where reasonable and necessary need for an off-tract improvement or improvements is necessitated or required by the proposed development application and where no other property owners receive a special benefit thereby, the Board may require the applicant, as a condition of approval, at the applicant's expense, to provide for and construct such improvements as if such were on-tract improvements in the manner provided hereafter and as otherwise provided by law.
3.
Payment of Allocated Costs.
(a)
Form. In the event that the improvement required shall be constructed as a general or a local improvement, the estimated cost of the off-tract improvement allocated to the applicant shall be deposited with the municipality in the form of cash. The deposit shall be paid by the subdivider 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 shall be refunded to the subdivider as hereinafter set forth.
4.
Deposit of Funds. All funds paid by an applicant pursuant to this chapter shall be used only for the improvements for which they are deposited or improvements serving the same purpose.
5.
Redetermination of Assessment upon Completion of Improvements. Upon completion of off-tract improvements required pursuant to this chapter, the applicant's liability hereunder shall be recalculated in accordance with the actual as compared with the estimated cost of the improvements. To the extent that such recalculation shall increase or decrease the amount of any cash deposit made by the applicant hereunder, the applicant shall forthwith either pay the amount of such increase to the municipality, or the municipality shall forthwith refund the amount of such decrease to the applicant.
b.
Omissions. Omissions from the bond of any improvement will in no way be construed as to relieve the developer from his legal obligation to conform to the required improvements as provided for in this chapter.
c.
Certification. Prior to the final acceptance of any of the required improvements by the Borough the subdivision owner or owners shall have submitted satisfactory affidavits certifying that no unpaid bills, liability or liens against such improvements and installations are outstanding.
§ 25-712 CHECKLISTS.
[Ord. No. 98-6 § 2, Art. VII § 15-54]
The submission of an application for either preliminary or final plat approval shall be accompanied by a completed application form and the appropriate completed checklist as adopted as part of this chapter. (See Appendix A)[1]
[1]
Editor's Note: Appendix A, referred to herein, is included as an attachment to this chapter.
§ 25-713 VIOLATIONS AND PENALTIES.
[Ord. No. 98-6 § 2, Art. VII § 15-55]
a.
In case any structure is erected, altered, converted or maintained or any structure or land is used in violation of this chapter, the Borough or an interested party may institute appropriate action to prevent such unlawful erection, alteration, conversion, maintenance or use; to restrain, correct or abate such violation; to prevent the occupancy of the structure or land; and to prevent any illegal act, conduct, business or use in or about such premises. Any person convicted of such violations before a court of competent jurisdiction shall be subject to a penalty not to exceed $500 and/or 90 days in jail. Each day shall be deemed a separate violation.
b.
If before final subdivision approval any person as owner or agent transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision for which municipal approval is required, such persons shall be subject to a penalty not to exceed $1,000 and each lot disposition so made may be deemed a separate violation.
c.
In addition, the Borough may institute and maintain a civil action:
1.
For injunctive relief.
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 N.J.S.A. 40:55D-56, but only if the municipality has a Planning Board and has adopted, by ordinance standards and procedures in accordance with N.J.S.A. 40:55D-38.
d.
In any such action, the transferee, purchaser or grantee shall be entitled to a lien upon the portion of the land from which the subdivision was made that remains in the possession of the developer or his assigns or successors, to secure the return of any deposits made or purchase price paid and, also, a reasonable search fee, survey expense and title closing expense, if any. Any such action must be brought within two years after the date of the recording of the instrument of transfer, sale or conveyance of the land or within six years if unrecorded.
§ 25-714.1 Purpose.
[Ord. No. 10-3 § 1; Ord. No. 10-17 § 1]
a.
In Holmdel Builder's Association V. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.
b.
Pursuant to P.L. 2008, c. 46 section 8 (C. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (C. 40:55D-8.1 through 8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.
c.
This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance P.L. 2008, c. 46, Sections 8 and 32-38. Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.
§ 25-714.2 Basic Requirements.
§ 25-714.3 Definitions.
[Ord. No. 10-3 § 3; Ord. No. 10-17 § 3]
The following terms, as used in this section, shall have the following meanings:
Shall mean a development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100% affordable development.
Shall mean the New Jersey Council on Affordable Housing established under the Act which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the State.
Shall mean 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.
Shall mean money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.
Shall mean the assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with sections 1, 5, and 6 of P.L. 1973, c. 123 (C . 54:1-35a through C. 54:1-35c).
Shall mean those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.
§ 25-714.4 Residential Development Fees.
[Ord. No. 10-3 § 4; Ord. No. 10-17 § 4]
a.
Imposed Fees.
1.
Within the R-A, R-B, R-C, R-D, R-E and R-F Districts, residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1.5% of the equalized assessed value for residential development provided no increased density is permitted.
2.
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.
b.
Eligible Exactions, Ineligible Exactions and Exemptions for Residential Development.
1.
Affordable housing developments, developments where the developer is providing for the construction of affordable units elsewhere in the municipality, and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.
2.
Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.
3.
Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, is demolished and replaced, or is expanded, if the expansion is not otherwise exempt from the development fee requirement. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
4.
Developers of one- or two-family owner-occupied dwelling units shall be exempt from paying a development fee.
5.
Owner-occupied residential structures demolished and replaced as a result of a fire, flood or natural disaster shall be exempt from paying a development fee.
§ 25-714.5 Nonresidential Development Fees.
[Ord. No. 08-29 §§ 1, 2; Ord. No. 10-3 § 5; Ord. No. 10-17 § 5]
a.
Imposed Fees.
1.
Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.
2.
Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for non-residential purposes.
3.
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the pre-existing land and improvement and the equalized assessed value of the newly improved structure, i.e. land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
b.
Eligible Exactions, Ineligible Exactions and Exemptions for Nonresidential Development.
1.
The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to the 2.5% development fee, unless otherwise exempted below.
2.
The 2.5% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.
3.
Nonresidential developments shall be exempt from the payment of non-residential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption" Form. Any exemption claimed by a developer shall be substantiated by that developer.
4.
A developer of a nonresidential development exempted from the non-residential development fee pursuant to P.L. 2008, c. 46 shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.
5.
If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by Fairview as a lien against the real property of the owner.
§ 25-714.6 Collection Procedures.
[Ord. No. 10-3 § 6; Ord. No. 10-17 § 6]
a.
Upon the granting of a preliminary, final or other applicable approval, for a development, the applicable approving authority shall direct its staff to notify the Construction Official responsible for the issuance of a building permit.
b.
For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption" to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The Construction Official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.
c.
The Construction Official responsible for the issuance of a building permit shall notify the local Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.
d.
Within 90 days of receipt of that notice, the Municipal Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.
e.
The Construction Official responsible for the issuance of a final certificate of occupancy notifies the local Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.
f.
Within 10 business days of a request for the scheduling of a final inspection, the Municipal Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.
g.
Should Fairview fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in Subsection b of section 37 of P.L. 2008, c. 46 (C. 40:55D-8.6).
h.
50% of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at building permit and that determined at issuance of certificate of occupancy.
i.
Appeal of Development Fees.
1.
A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest bearing escrow account by Fairview. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
2.
A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest bearing escrow account by Fairview. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
§ 25-714.7 Affordable Housing Trust Fund.
[Ord. No. 10-3 § 7; Ord. No. 10-17 § 7]
a.
There is hereby created a separate, interest-bearing housing trust fund to be maintained by the Chief Financial Officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
b.
The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:
1.
Payments in lieu of on-site construction of affordable units;
2.
Developer contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;
3.
Rental income from municipally operated units;
4.
Repayments from affordable housing program loans;
5.
Recapture funds;
6.
Proceeds from the sale of affordable units; and
7.
Any other funds collected in connection with Fairview's affordable housing program.
c.
Within seven days from the opening of the trust fund account, Fairview shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the bank and COAH to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).
d.
All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.
§ 25-714.8 Use of Funds.
[Ord. No. 08-29 § 3; Ord. No. 10-3 § 8; Ord. No. 10-17 § 8]
a.
The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the Housing Trust Fund may be used for any activity approved by COAH to address the Fairview's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to: preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or State standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.
b.
Funds shall not be expended to reimburse Fairview for past housing activities.
c.
At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the Municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.
1.
Affordability assistance programs may include down payment assistance, security deposit assistance, low interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs.
2.
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the Municipal Fair Share Plan to make them affordable to households earning 30% or less of median income.
3.
Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
d.
Fairview may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:96-18.
e.
No more than 20% of all revenues collected from development fees, may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the Affordable Housing Trust Fund.
§ 25-714.9 Monitoring.
[Ord. No. 10-3 § 9; Ord. No. 10-17 § 9]
Fairview shall complete and return to COAH all monitoring forms included in monitoring requirements related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with Fairview's housing program, as well as to the expenditure of revenues and implementation of the plan certified by COAH. All monitoring reports shall be completed on forms designed by COAH.
§ 25-714.10 Ongoing Collection of Fees.
[Ord. No. 08-29 § 4; Ord. No. 10-3 § 10; Ord. No. 10-17 § 10]
The ability for Fairview to impose, collect and expend development fees shall expire with its substantive certification unless Fairview has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance. If Fairview fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification, it may be subject to forfeiture of any or all funds remaining within its Municipal Trust Fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to section 20 of P.L. 1985, c. 222 (C. 52:27D-320). Fairview shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall Fairview retroactively impose a development fee on such a development. Fairview shall not expend development fees after the expiration of its substantive certification or judgment of compliance.