Mantoloking City Zoning Code
ARTICLE V
Planning and Zoning Board
§ 30-16 Organization.
In accordance with the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., the Borough of Mantoloking, being a Borough with a population of less than fifteen thousand (15,000) people, has instituted a nine (9) member Planning Board to exercise, to the same extent and subject to the same restrictions, all the powers of a Board of Adjustment.
§ 30-17 Planning Board.
A.
Establishment. The Planning Board of the Borough of Mantoloking shall consist of nine (9) members which for convenience in designating the manner of appointment, shall have the four (4) following classes:
(1)
Class I. The Mayor of the Borough of Mantoloking, or the Mayor's designee in the absence of the Mayor;
(2)
Class II. One of the officials of the municipality other than a member of the Borough Council, to be appointed by the Mayor;
(3)
Class III. A member of the Borough Council, to be appointed by it; and
(4)
Class IV. Six (6) other citizens of the Borough of Mantoloking, to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, position or employment except that one (1) member may also hold a seat on the Board of Education.
(5)
All members of the Planning Board of the Borough of Mantoloking shall be municipal residents.
B.
Terms.
(1)
The term of the member composing Class I shall correspond with his or her official tenure. The terms of the members composing Class II and Class III shall be for one (1) year or terminate at the completion of their respective terms of office, whichever occurs first.
(2)
The term of a Class II or Class IV member who is also a member of the environmental commission shall be for three years or terminate at the completion of his term of office as a member of the environmental commission, whichever occurs first. The term of a Class IV member who is also a member of the board of adjustment or board of education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first. The Class IV term of each such member shall be four years.
(3)
Alternate members. Alternate members of the Planning Board shall be appointed by the Mayor and shall meet the qualifications for Class IV members of nine (9) member Planning Boards. The Mayor may, in the exercise of his or her discretion, appoint up to four (4) alternate members of the Planning Board. Alternate members shall be designated at the time of appointment by the Mayor as "Alternate No. 1", "Alternate No. 2", etc. The terms of the alternate members shall be for two (2) years, except that the terms of the alternate members shall be such that the term of not more than one (1) alternate member shall expire in any one (1) year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two (2) years. Alternate members of the Planning Board of the Borough of Mantoloking shall be municipal residents.
C.
Participation of alternate members. Alternate members may participate in all matters but may not vote except in the absence or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote. Participation of alternate members shall not be deemed to increase the size of the Planning Board.
D.
Conflicts. No member of the Planning Board shall be permitted to act on any matter in which he or she has, either directly or indirectly, any personal or financial interest. In the event that the Planning Board shall lack a quorum of members eligible to act upon an application because of either direct or indirect personal or financial interest therein, alternate members of the Planning Board will be called upon according to number.
E.
Vacancies. If a vacancy of any class shall occur in a manner other than by expiration of term, it shall be filled by appointment for the unexpired term.
F.
Removal. Any member other than a Class I member, after a public hearing if he or she requests one, may be removed by the Borough Council for cause.
G.
Advisory Committee. The Mayor may appoint one (1) or more persons as a Citizens' Advisory Committee to assist or collaborate with the Planning Board in its duties, but such person or persons shall have no power to vote or take other action required by the Board.
H.
Organization of Planning Board. The Planning Board shall elect a Chairman and Vice-Chairman from the members of Class IV and shall elect a Secretary who is either a member or alternate member of the Planning Board or a municipal employee designated by it. An alternate member of the Planning Board shall not serve as Chairman or Vice-Chairman of the Planning Board. The Planning Board may employ, or contract for, and fix the compensation of legal counsel (other than the Municipal Attorney), experts, and other staff, including but not limited to a Board Secretary, and services utilizing funds appropriated by the Borough Council for its use. The costs of such counsel, experts and other assistance shall not exceed the amounts appropriated to the Planning Board by the Borough Council, unless reimbursable by an applicant. The Borough Council shall make provision in its budget and shall appropriate funds for the expenses of the Planning Board.
I.
Powers and duties of the Planning Board. The Planning Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply. The Planning Board shall have the following powers and duties:
(1)
To make and adopt and, from time to time, amend a Master Plan for the physical development of the municipality, including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the planning of the municipality, in accordance with the provisions of N.J.S.A. 40:55D-28.
(2)
To administer site plan and land subdivision review in accordance with the provisions of this chapter and N.J.S.A. 40:55D-37 through 40:55D-59.
(3)
To grant exceptions from certain requirements for subdivision and site plan approval pursuant to N.J.S.A. 40:55D-51.
(4)
Informal review. At the request of an applicant, the Planning Board may grant an informal review of a concept plan for a development for which the applicant intends to prepare and submit an application for development. The amount of any fees for such an informal review shall be a credit toward fees for review of the application for development. The applicant shall not be bound by any concept plan for which review is requested, and the Planning Board shall not be bound by any such review.
(5)
To consider and report to the Borough Council within thirty-five (35) days after referral to the Board as to any proposed development regulation submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26(a) and also to pass upon other matters specifically referred to the Planning Board by the Borough Council pursuant to the provisions of N.J.S.A. 40:55D-26(b).
(6)
To participate in the preparation and review of programs or plans required by State or Federal law or regulations.
(7)
To assemble data on a continuing basis as part of a continuing planning process.
(8)
To perform such other advisory duties as are assigned to it by ordinance or resolution of the Borough Council for the aid and assistance of the Borough Council or for other agencies or officers, including, but not limited to, preparation of a capital improvements program pursuant to N.J.S.A. 40:55D-29.
(9)
To exercise the powers of a Zoning Board of Adjustment,
J.
Meetings.
(1)
Meetings of the Planning Board shall be scheduled no less often than once a month, and any meeting so scheduled shall be heard as scheduled unless canceled for lack of applications for development to process.
(2)
Special meetings may be provided for at the call of the Chairman or on the request of any two (2) Board members, which meetings shall be held on notice to the Board's members and to the public in accordance with all applicable legal requirements.
(3)
No action shall be taken at any meeting without a quorum being present.
(4)
All actions shall be taken by majority vote of a quorum except as otherwise required by any provision of N.J.S.A. 40:55D-1 et seq.
(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 Meetings Law, N.J.S.A. 10:4-6 et seq. An executive session for the purpose of discussing and studying any matters to come before the Planning Board shall not be deemed a regular or special meeting.
K.
Minutes. The Secretary appointed by the Planning Board shall keep minutes of every regular or special meeting which shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney; the action taken by the Board; and the findings, if any, and reasons therefor made by the Board.
L.
Hearings.
(1)
Rules. Unless permitted to waive notice and public hearing by the provisions of this chapter or other applicable law, the Planning Board shall hold a hearing on each application for development submitted for its consideration and shall make rules governing conduct of applicants and others before the Planning Board.
(2)
Filing of documents. Any maps and documents for which approval is sought at a hearing shall be on file at the Zoning Office in the Borough Hall and available for public inspection during regular business hours.
(3)
Oaths. The officer presiding at the hearing or such person as he or she may designate shall have the power to administer oaths and to 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.
(4)
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.
(5)
Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
(6)
Records. The Planning Board shall provide for the verbatim recording of the proceedings by either stenographic, mechanical or electronic means. The Planning Board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his or her expense. The fee charged shall not exceed the actual cost of preparing the transcript or recording. Transcripts shall be certified in writing by the transcriber to be accurate.
M.
Notice of hearings. Notice shall be required for all site plan and subdivision applications. Whenever public notice of a hearing is required on an application for development, the applicant shall give notice thereof at least ten (10) days prior to the date of the hearing in accordance with the following requirements:
(1)
Public notice of a hearing on an application for development shall be given for all of the following:
(a)
Appeal of the determination of the Zoning Officer;
(b)
Variance;
(c)
Directive for issuance of a building permit; or
(d)
Preliminary or final subdivision plats or site plan approval or extension of such approval or extension of statutory guarantee;
(e)
Extension of approvals for five (5) or more years under N.J.S.A. 40:55D-49 and N.J.S.A. 40:55D-52;
(f)
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; or
(g)
Requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which the Planning Board is authorized to pass.
(2)
Public notice shall be given by publication in the official newspaper of the Borough, if there is one, or in a newspaper of general circulation in the Borough and shall conform with N.J.S.A. 40:55D-11 as to content.
(3)
Notice of hearing requiring public notice pursuant to this chapter shall be given by certified mail to the current owners of the tax lot or lots, located within two hundred (200) feet in all directions of the property which is the subject of such hearing and whether located within or without the municipality in which applicant's land is located.
N.
Time limits for approvals.
(1)
Preliminary site plan approval. Upon the submission to the Zoning Officer of a complete application of a site plan which involves ten (10) acres of land or less and ten (10) dwelling units or less, the Planning Board shall grant or deny preliminary approval within forty-five (45) days of the date of such submission or within such further time as may be consented to by the applicant. Upon the submission of a complete application for a site plan which involves more than ten (10) acres or more than ten (10) dwelling units, the Planning Board shall grant or deny preliminary approval within ninety-five (95) days of the date of such submission or within such further time as may be consented to by the applicant. If the Planning Board fails to act within the time periods provided in this subsection, the Planning Board shall be deemed to have granted preliminary approval of the site plan.
(2)
Preliminary subdivision approval. Upon submission of a complete application to the Zoning Officer for a subdivision of ten (10) or fewer lots, the Planning Board shall grant or deny preliminary approval within forty-five (45) days of the date of such submission or within such further time as may be consented to by the applicant. Upon submission of a complete application to the Zoning Officer for a subdivision of more than ten (10) lots, the Planning Board shall grant or deny preliminary approval within ninety-five (95) days of the date of such submission or within such further time as may be consented to by the applicant. If the Planning Board fails to act within the time periods provided in this subsection, the Planning Board shall be deemed to have granted preliminary approval of the subdivision.
(3)
Effect of preliminary approval.
(a)
Preliminary approval of a subdivision or of a site plan shall, except as otherwise provided herein, confer upon the applicant the following rights for a three (3) year period from the date of adoption of the resolution of preliminary approval:
[1]
That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layouts and design standards for streets, curbs and sidewalks; lot size; yard dimensions; and off-tract improvements, and, in the case of a site plan, any requirements peculiar to site plan approval pursuant to N.J.S.A. 40:55D-41; to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relates to public health and safety.
[2]
That the applicant may submit for final approval, on or before the expiration date of preliminary approval, the whole or a section or sections of the preliminary subdivision plat or site plan, as the case may be.
[3]
That the applicant may apply for and the Planning Board may grant extensions on such preliminary approval for additional periods of at least one (1) year, but not to exceed a total extension of two (2) years, provided that if the design standards have been revised by ordinance, such revised standards shall govern.
(b)
Whenever the Planning Board grants an extension for preliminary approval and preliminary approval has expired before the date of the grant of the extension, the extension shall revive preliminary approval and date from what was otherwise the date of expiration. The applicant may apply for the extension either before or after what would otherwise be the date of expiration.
(4)
Final approval.
(a)
Application for final subdivision or site plan approval shall be granted or denied within forty-five (45) days of submission of a complete application to the Zoning Officer or within such further time as may be consented to by the applicant.
(b)
Final approval of a subdivision shall expire ninety-five (95) days from the date of signing of the plat unless within such period the plat shall have been duly filed by the applicant with the County Recording Officer, the Borough Engineer and the Borough Tax Assessor. The Planning Board may, for good cause shown, extend the period for recording by an additional period not to exceed one hundred ninety (190) days from the date of the signing of the plat. The Planning Board may extend the ninety-five (95) or one hundred ninety (190) day periods if the applicant proves to the reasonable satisfaction of the Planning Board that the applicant was barred or prevented, either directly or indirectly, from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities and the applicant applied promptly for and diligently pursued these approvals. Such extension shall be equal to the periods of delay caused by the wait for the required approvals as determined by the Planning Board, and the applicant may apply for such extension either before or after the original expiration date.
(5)
Effect of final approval.
(a)
The zoning requirements applicable to the preliminary approval first granted and all other rights conferred upon the applicant at preliminary approval, whether conditionally or otherwise, shall not be changed for a period of two (2) years after the date of adoption of the resolution of final approval, provided that in the case of a subdivision the rights conferred by this section shall expire if the plat has not been duly recorded within the required time periods. If the applicant has followed the standards prescribed for final approval and in the case of a subdivision, has duly recorded the plat, the Planning Board may extend such periods of protection for extensions of one (1) year, but not to exceed three (3) extensions. Notwithstanding any other provisions of N.J.S.A. 40:55D-1 et seq., the granting of final approval terminates the time periods of the rights conferred by preliminary approval.
(b)
Whenever the Planning Board grants an extension of preliminary approval and preliminary approval has expired before the date of the grant of the extension, the extension shall revive preliminary approval and date from what was otherwise the date of expiration. The applicant may apply for the extension either before or after what would otherwise be the date of expiration.
(6)
Combined preliminary and final subdivision or site plan approval.
(a)
An applicant may request, and the Planning Board may consent to accept, an application for development for combined preliminary and final subdivision or site plan approval, provided that:
[1]
The proposed development is not to be constructed in sections or stages.
[2]
The applicant pays the application fees and provides all submissions required for both preliminary and final applications.
[3]
The applicant complies with any notice of hearing requirements applicable to the preliminary plat stage.
(b)
Any approval granted by the Planning Board on such combined application shall confer upon the applicant all the rights set forth in this section for final approval.
(7)
Failure to act. A certificate of the Zoning Officer as to the failure of the Planning Board to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the County Recording Officer for the purpose of filing subdivision plats.
O.
Simultaneous review. The Planning Board shall have the power to review and approve or deny site plans simultaneously with review for subdivision approval without requiring the applicant to make further application to the Planning Board or requiring the Planning Board to hold further hearings. The longest time period for action by the Planning Board, whether it is for subdivision or site plan approval, shall apply.
§ 30-18 Zoning powers of Planning Board.
A.
The Planning Board shall hereby exert all the powers of a Zoning Board of Adjustment and shall have the power to:
(1)
Hear and decide appeals where the appellant alleges that there is error in any order, requirement, decision or refusal made by the Zoning Officer based on or made in the enforcement of this chapter.
(a)
Appeals to the Planning Board may be taken by any interested party. Each appeal shall be taken within the twenty (20) day period prescribed by N.J.S.A. 40:55D-72 by filing with the Planning Board Secretary a notice of appeal together with fifteen (15) copies of the notice. The notice of appeal shall specify the grounds for the appeal. The officer from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
(b)
The Planning Board shall render a decision on the appeal not later than one hundred twenty (120) days after the date of the appeal from the decision of the Zoning Officer. Failure of the Planning Board to render a decision within the one hundred twenty (120) day period shall constitute approval of the appeal.
(c)
An appeal shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the Planning Board, after the notice of appeal has been filed, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Superior Court of New Jersey, on application or notice to the officer from whom the appeal is taken and to the Borough Council, and on good cause shown.
(d)
The Planning Board may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq., reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination of the administrative order as ought to be made, and to that end the Planning Board shall have all the powers of the Zoning Officer from whom the appeal was taken.
(2)
Hear and decide requests for interpretation of the Zoning Map or this chapter, in accordance with N.J.S.A. 40:55D-1 et seq.
(3)
Hear and decide requests for general variances ["C" Variances] as follows:
(a)
"(C)(1) Variance." Where, by reason of exceptional narrowness, shallowness or shape of a specific property; or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property; or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to this chapter or N.J.S.A. 40:55D-1 et seq. would result in peculiar and exceptional and undue hardship upon the applicant for development of such property, grant, upon an application or an appeal relating to such property, a variance from strict application of such regulation so as to relieve such difficulties or hardship.
(b)
"(C)(2) Variance." Where, in an application or appeal relating to a specific piece of property, the purposes of this chapter and N.J.S.A. 40:55D-1 et seq., would be advanced by a deviation from this chapter's requirements and the benefit of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to this chapter and N.J.S.A. 40:55D-1 et seq.
(4)
Special variance ["D" Variance]. In particular cases and for special reasons, the Planning Board may grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62 et seq. to permit.
(a)
A use or principal structure in a zone restricted against such use or principal structure,
(b)
An expansion of a nonconforming use,
(c)
Deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use,
(d)
An increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4, or
(e)
A height of a principal structure which exceeds by ten (10) feet or ten (10%) percent the maximum height permitted in the zone for a principal structure.
(5)
The Planning Board shall, at least once a year, review its decisions on applications and appeals for variances and shall prepare and adopt by resolution a report on its findings on zoning ordinance provisions which were the subject of variance requests, together with the Planning Board's recommendations for zoning ordinance amendment or revision, if any. The report shall be filed with the Borough Clerk.
B.
Expiration of variances. Any variance granted by the Planning Board permitting the erection or alteration of any structure or structures or permitting a specified use of any premises shall expire two (2) years from the date of publication of the notice of the judgment or determination of the Planning Board, unless the construction, alteration or use has actually been substantially commenced on each and every structure permitted by the variance, or unless such development has actually been substantially commenced, within the two-year period. The period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Planning Board to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding. Where subdivision or site plan approval is required, the period of time for commencement of the development specified by the Planning Board shall be the same as the period of time for which other rights are conferred upon the applicant by such subdivision or site plan approval pursuant to the provisions of this chapter.
§ 30-19 Application procedure.
A.
Applications for a development permit to be issued by the Planning Board shall be accompanied by at least fifteen (15) copies. Applications shall not be accepted by the Zoning Officer unless they are accompanied by the required fees set forth in this chapter.
B.
Review by Zoning Officer. Upon receipt of an application, the Zoning Officer shall review the application and supporting exhibits for compliance with submission requirements. Upon completion of this review, the Zoning Officer shall also, upon receipt of an application for a site plan or subdivision, forward one (1) copy of each of the applications, plat and attachments to the Borough Engineer.
C.
Engineering review. The Borough Engineer shall review applications for site plans and subdivisions to determine if the applications are complete. If the application is incomplete, the Borough Engineer shall notify the applicant of any deficiencies. If the application is complete, the application shall be scheduled for hearing by the Planning Board.
D.
Planning Board action. In acting upon an application for a subdivision, variance or site plan, the Planning Board shall consider whether the application complies with the following standards:
(1)
The proposed use is consistent with the Master Plan;
(2)
The details and improvement standards of the plat are in accordance with the standards of this chapter;
(3)
Adequate provision is made for safe and convenient vehicular traffic access, circulation and parking;
(4)
Adequate provision is made for safe and convenient pedestrian circulation;
(5)
Ingress and egress for the site will not impede or obstruct the flow of traffic on public streets;
(6)
Adequate provision has been made for the collection and disposal of surface water runoff and the proposed drainage facilities have been approved by the Borough Engineer;
(7)
Adequate provision has been made to screen adjoining residential properties from any adverse effects that might result from outdoor lighting, buildings, parking areas, or similar site features or structures located on the site;
(8)
Adequate provision has been made for compliance with the performance standards of this chapter;
(9)
Adequate provision has been made to provide structures and uses of a quality and design which will not produce adverse effects on the surrounding area in the Master Plan; and
(10)
The proposed development is compatible with approved subdivision and/or site plans for adjacent and nearby parcels of land.
E.
Reproduction fee and issuance of development permits. Approvals of all applications for development permits shall not be valid until the completion of the following procedures:
(1)
The Zoning Officer shall certify that all conditions of approval have been satisfied.
(2)
In the case of applications for site plans and subdivisions, the applicant shall submit the reproducible original of the plat for the signature of the Chairman and Secretary or Assistant Secretary of the Planning Board and the Borough Engineer.
(3)
In the case of applications for site plans and subdivisions, the applicant shall pay a reproduction fee equal to three ($3.00) dollars per sheet of the plat and attachments, except that the minimum fee shall be five ($5.00) dollars.
(4)
The Zoning Officer shall cause three (3) copies of the signed plat and attachments to be reproduced. One (1) copy shall be retained in the files of the Zoning Officer, and one (1) copy shall be retained in the files of the Borough Engineer.
(5)
After signature and reproduction, the Zoning Officer shall return the reproducible original of the plat and attachments to the applicant.
(6)
For all applications that receive minor plat or final plat approval, the Zoning Officer shall issue a zoning permit after the plat has been signed. The date of the zoning permit shall be the date upon which the approval becomes valid. The date upon which the approval of applications related to sketch plats or preliminary plats becomes valid shall be the date on which the plat is signed by the Chairman and Secretary or Assistant Secretary of the Planning Board. However, the period of time for which certain rights are conferred upon the applicant shall commence on the date which the Planning Board granted the approval.
F.
At the time of application, the Planning/Zoning Board secretary will provide a copy of all site plan and/or subdivision application documents to the Mantoloking Borough Environmental Commission for review.
§ 30-20 Required submissions.
A.
Prior to issuance of a certificate of completeness or scheduling of an application for development by the Planning Board, the Zoning Officer shall determine that the requirements of this chapter have been met by the applicant's submission. The applicant shall complete and submit the following:
(1)
Fifteen (15) copies of the prescribed Borough development application;
(2)
Fifteen (15) copies of a property survey map, prepared, signed and sealed by a licensed New Jersey land surveyor. The map shall have been prepared based upon a survey made within the past twelve (12) months preceding the date of the application;
(3)
A Flood Elevation Certificate for existing buildings.
(4)
Certification by the municipal Tax Collector that all taxes relating to the subject property have been paid;
(5)
Certification by the applicant's attorney that the applicant is the owner of the lot in question and for which development approval is being sought;
(6)
Fifteen (15) copies of all plans the applicant intends to utilize at the hearing; and
(7)
Applicable fees.
§ 30-21 Site plans.
A.
Optional submission of sketch plat. Applicants are encouraged to submit a sketch plat of a site during the early design stages containing that information necessary to form a basis for discussion of alternatives for development. A detailed review of a sketch plat will minimize the necessity of major revisions in the more detailed preliminary plat submission. Application fees paid at the sketch plat submission stage will be deducted from the required application fees at the preliminary plat stage if submittal of the preliminary plat is made within one (1) year from the date of sketch plat approval.
B.
Sketch plat requirements. Prior to issuance of a certificate of completeness or scheduling of a public hearing for the sketch plat before the Planning Board, the Zoning Officer shall determine that the following have been submitted in proper form:
(1)
Application fees.
(2)
Fifteen (15) copies of the plat and attachments meeting the requirements set forth below:
(a)
The sketch plat shall be based on a land survey or a current tax map;
(b)
The plat shall be drawn at a scale not less than one hundred (100) feet to the inch (100':1");
(d)
Detailed information, including but not limited to the following:
[1]
A key map adequately showing the location of the site with reference to surrounding areas and streets;
[2]
Schedule indicating acreage of tract, number of lots, and zone;
[3]
Zone boundaries;
[4]
All existing structures and streets;
[5]
Boundaries, nature and extent of environmentally sensitive areas, including but not limited to dunes and riparian lands, including such evidence of demarcation of such areas as may be provided by the dune reference line, mean high-water line, and bulkhead line;
[6]
Layout of proposed site plan or subdivision.
C.
Plat requirements.
(1)
General requirements. The plat for a site plan shall be drawn at a scale of not less than fifty feet to the inch (50': 1") shall conform to the provisions of N.J.S.A. 46:23-9.9 et seq., as amended and supplemented, and shall include or be accompanied by the information specified below; provided, however, that the information required for construction, alteration or expansion of a single-family dwelling in a residential zone may be modified or waived by the Zoning Officer:
(a)
Dimensions, both linear and angular, of the exterior boundaries of the site plan or subdivision. All lots and lands reserved or dedicated for public use shall balance and their descriptions shall close within a limit of error of not more than one (1) part in ten thousand (10,000).
(b)
The site plan shall be based upon a current boundary survey certified to by the applicant and prepared by a land surveyor licensed in the State of New Jersey or recertified not less than twelve (12) months prior to the date of application.
(2)
Title block. The title block shall appear on all sheets and shall include:
(a)
Title of Site Plan;
(b)
Name of the subdivision, if any;
(c)
Tax Map sheet, block and lot number(s) of the tract to be subdivided as shown on the latest Borough Tax Map, the date of which shall also be shown;
(d)
The acreage of the tract to the nearest tenth of an acre;
(e)
The names and addresses of owner and applicant so designated;
(f)
The date of the original plat and all revisions; and
(g)
The name(s), signature(s), address(es) and license number(s) of engineer and/or land surveyor who prepared the map and made the survey. The plat shall bear the embossed seal of the engineer and/or land surveyor.
(3)
Detailed information.
(a)
A key map adequately showing the location of the site with reference to surrounding areas, existing streets, the names of all such streets and any zone boundary or Borough boundary which is within five (500) hundred feet of the site;
(b)
The names of all owners and property lines of parcels within two (200) hundred feet of the site, including properties across the street;
(c)
All zone boundaries and Tax Map sheet, lot and block numbers, existing streets and watercourses within two hundred (200) feet of the boundaries thereof, and both the width of the paving and the width of the right-of-way of each street, existing public easements and municipal borders within two hundred (200) feet of the site;
(d)
All existing structures, with an indication of any which are to be destroyed or removed, and the front, rear and side yard dimensions of any to remain, referenced to proposed lot lines;
(e)
All existing and proposed public easements or rights-of-way and the purposes thereof;
(f)
The existing system of drainage of the site and of any larger tract of which it is a part, together with information on how the applicant proposes to dispose of surface drainage;
(g)
All proposed lot lines and the areas of all lots in square feet. The areas and dimensions specified shall be shown to the nearest hundredth of a square foot or hundredth of a linear foot;
(h)
North arrow;
(i)
Written and graphic scales;
(j)
A corporation or partnership shall list the names and addresses of all stockholders or individual partners owning at least ten (10%) percent of its stock of any class or at least ten (10%) percent of the interest in the partnership, as the case may be. This requirement shall be followed by every corporate stockholder or partner in a partnership until the names and addresses of the noncorporate stockholders and individual partners exceeding the ten (10%) percent ownership criterion have been listed;
(k)
Proposed lot and block numbers approved by the Borough Engineer; and
(l)
Such other information as the Planning Board and/or Borough Engineer may require or request during the review of the application for classification and approval as a site plan.
D.
Review by Zoning Officer. Prior to issuance of a certificate of completeness or scheduling of a site plan for consideration by the Planning Board, the Zoning Officer shall determine that requirements of this chapter have been met by the applicant's site plan submission. Site plan applications shall conform to the greatest extent practical with the detailed requirements of § 30-35, Surface water management.
§ 30-22 Subdivisions.
A.
Conditions of approval. Any approval of an application for development for a subdivision or site plan granted by the Planning Board shall be subject to the following conditions being satisfied prior to the signing of the subdivision or site plan or issuance of a development permit:
(1)
Posting of performance guarantees for the installation of any improvements required by the Planning Board;
(2)
Proof of payment of any outstanding real estate taxes or other municipal charges;
(3)
Ocean County Planning Board approval, if required and not previously granted;
(4)
Mantoloking Borough approval or waiver of sewer requirements, if not previously granted;
(5)
Payment of the required reproduction fees;
(6)
Submission of additional prints of the plat map and attachments for distribution, if required;
(7)
The applicant's publication of a notice of the decision;
(8)
Any other conditions which may be imposed by the Planning Board or which may be required by Federal, State or local law;
(9)
When improvements are required in public rights-of-way, evidence of a comprehensive general liability insurance policy in an amount not less than one million ($1,000,000.00) dollars per occurrence, indemnifying and holding harmless the Borough of Mantoloking and its officials, officers, agents, servants, employees, and professional service providers from any liability for any acts of the applicant or his agents, contractors or employees in the implementing of the approved subdivision. The insurance policy shall provide for thirty (30) days' notice to the Borough prior to cancellation. It shall be a violation of this chapter for any property owner, applicant or builder to implement the approved subdivision without current valid evidence of insurance on file; and
(10)
The Borough Engineer's approval of the Surface Water Management Plan.
B.
Plat requirements.
(1)
General requirements.
(a)
Any subdivision presented to the Planning Board for its approval shall be drawn, signed and appropriately sealed by an architect, professional engineer, land surveyor and/or professional planner licensed to practice in the State of New Jersey as each is permitted by law.
(b)
Subdivisions and site plans shall not be drawn at a scale smaller than one inch equals fifty feet (1"=50') nor larger than one inch equals ten feet (1"=10').
(2)
Title block. The title block shall appear on all sheets and shall include:
(a)
The title of Subdivision or Site Plan, whichever shall apply;
(b)
The name of the development, if any;
(c)
The Tax Map sheet, block and lot number of the site, as shown on the latest Borough Tax Map, the date of which should also be shown;
(d)
The date of the original subdivision and all revisions;
(e)
The names and addresses of the owner and applicant for development, so designated;
(f)
The name(s), signature(s), address(es) and license number(s) of the engineer, architect, land surveyor or planner who prepared the plat and their embossed seal; and
(g)
If the subdivision contains more than one (1) sheet, each sheet shall be numbered and titled.
(3)
A schedule indicating:
(a)
The acreage of the tract and siting the portion of the tract involved in the subdivision;
(b)
The floor area of the existing and proposed buildings, listed separately;
(c)
The proposed use or uses and the floor area devoted to each use;
(d)
The zone in which the site is located;
(e)
Proposed and required lot dimensions and front, rear and side setbacks;
(f)
Proposed and required off-street parking spaces; and
(g)
Square footage and percentage of the site retained in unoccupied open space.
(4)
North arrow, written and graphic scales.
(5)
Sufficient spot elevations (United States Coast and Geodetic Datum) and/or contour lines to indicate the proposed system of surface drainage and the relationship of proposed grading to the land surrounding the site, including dune elevations if applicable.
(6)
The tops of the banks and boundaries of the floodways and flood hazard areas of all existing watercourses, where such have been delineated, or the scarp line in the case of oceanfront property, or the limits of alluvial soils where the boundaries of floodways and flood hazard areas have not been determined, and/or such other information as may assist the Planning Board in the determination of floodway and flood hazard area limits.
(7)
Paving and right-of-way widths of existing streets within two hundred (200) feet of the site.
(8)
The boundary, nature and extent of any environmentally sensitive areas, including but not limited to dunes and riparian lands, as well as such demarcation of such areas as may be provided by the dune reference line, the mean high—water line, or the bulkhead line.
(9)
All existing structures on the site and within two hundred (200) feet of the site, indicating those to be destroyed or removed and those to remain, and including the use thereof.
(10)
Location, use, finished grade level, ground coverage, first floor and other pertinent improvements.
(11)
Existing and proposed public easements or rights-of-way and the purpose thereof.
(12)
Zone boundaries and tax map sheet, lot and block numbers and names of owners of all properties within two hundred (200) feet of the site.
(13)
A key map adequately showing the location of the site with reference to surrounding areas, existing streets, the names of all such streets and any zone boundary or Borough boundary which is within five hundred (500) feet of the subdivision.
(14)
The capacity of off-street parking areas and the location and dimensions of all access drives, aisles and parking stalls.
(15)
The location and size of proposed loading docks.
(16)
Location of curbs and sidewalks.
(17)
Cross section(s) showing the composition of pavement areas, curbs and sidewalks.
(18)
Exterior lighting plan, including the location and drawn details of all outdoor lighting standards and fixtures and a notation on the plat indicating conformity or nonconformity with the minimum design standards of this chapter.
(19)
Landscaping and screening plan showing the location type, spacing and number of each type of tree or shrub and the location, type and amount of each type of ground cover to be utilized.
(20)
Location of signs and drawn details showing the size, nature of construction, height and content of all signs. See § 30-42.
(21)
Drawn details of the type of screening to be utilized for refuse storage areas.
(22)
Floor plans and building elevation drawings of any proposed structure or structures, or existing structures to be renovated.
(23)
Proposed measures for surface water management consistent with this chapter.
(24)
Approval block for signatures of the Planning Board Chairman and the Borough Engineer.
C.
Preliminary subdivision approval — time for decision.
(1)
A complete application for preliminary approval of a subdivision shall be submitted to the Zoning Officer. The plat and any other engineering documents to be submitted shall be required in tentative form for discussion purposes for preliminary approval.
(2)
If the Planning Board requires any substantial amendment in the layout of improvements proposed by the applicant that have been the subject of a hearing, an amended application for development shall be submitted and proceeded upon, as in the case of the original application for development. The Planning Board shall, if the proposed development complies with this chapter, grant preliminary subdivision approval.
(3)
Upon the submission to the Secretary of the Planning Board of a complete application for a subdivision of ten (10) or fewer lots, the Planning Board shall grant or deny preliminary approval within forty-five (45) days of the date of such submission or within such further time as may be consented to by the applicant.
(4)
Upon the submission of a complete application for a subdivision of more than ten (10) lots, the Planning Board shall grant or deny preliminary approval within ninety-five (95) days of the date of such submission or within such further time as may be consented to by the applicant.
(5)
Failure of the Planning Board to reach a decision within the specified time periods or extensions thereof shall result in the approval of the subdivision as submitted.
D.
Effect of preliminary subdivision approval.
(1)
If the Planning Board acts favorably on a preliminary application, a notation to that effect shall be made on the plat.
(2)
Preliminary approval of a subdivision shall confer upon the applicant the following rights for a three (3) year period from the date of the preliminary approval:
(a)
That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layout and design standards for streets, curbs, and sidewalks; lot size; yard dimensions and off-tract improvements; except that nothing herein shall be construed to prevent the Borough from modifying, by ordinance, such general terms and conditions of preliminary approval as relate to public health and safety;
(b)
That the applicant may submit for final approval on or before the expiration date of preliminary approval, the whole or a section or sections of the preliminary subdivision plat; and
(c)
That the applicant may apply for, and the Planning Board may grant, extensions on such preliminary approval for additional periods of at least one (1) year but not to exceed a total extension of two (2) years, provided that if the design standards have been revised by ordinance, such revised standards may govern.
E.
Final approval of subdivisions.
(1)
The final plat shall be submitted to the Planning Board for final approval within three (3) years from the date of preliminary approval.
(2)
The Planning Board shall grant final approval if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by this chapter; the conditions of preliminary approval; and the standards prescribed by the "Map Filing Law", N.J.S.A. 46:23-9.9 et seq. as amended and supplemented.
(3)
Final approval shall be granted or denied within forty-five (45) days after submission of a complete application to the Secretary of the Planning Board, or within such further time as may be consented to by the applicant. Failure of the Planning Board to act within the period prescribed shall constitute final approval, and a certificate of the Planning Board Secretary as to the failure of the Planning Board to act shall be issued on the applicant's request, and it shall be sufficient in lieu of the written endorsement or other required evidence of approval, and shall be so accepted by the County Recording Officer for the purpose of filing subdivision plats.
F.
Waiver of requirements authorized. When acting upon applications for preliminary approval, the Planning Board shall have the power to grant such exceptions from the requirements for subdivision approval as may be reasonable and within the general purpose and intent of the provisions for subdivision review and approval of this chapter if the literal enforcement of one or more provisions of this chapter is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.
G.
Effect of final approval of subdivisions. The requirements applicable to the preliminary approval first granted and all other rights conferred upon the subdivision, whether conditionally or otherwise, shall not be changed for a period of two (2) years after the date of final approval; provided that in the case of a subdivision the rights conferred by this section shall expire if the plat has not been duly recorded within ninety-five (95) days from the date of signing of the plat, unless within such period the applicant filed the plat with the County Recording Officer. If the applicant has followed the standards prescribed for final approval, and has duly recorded the plat as required in this chapter, the approving authority may extend such period of protection for extensions of one (1) year but not to exceed three (3) extensions.
H.
Guarantees required.
(1)
Before the recording of final subdivision plats, the Planning Board may require, and shall accept in accordance with the standards adopted by this chapter, for the purpose of assuring the installation and maintenance of on-tract improvements:
(a)
The furnishing of a performance guarantee in favor of the Borough in an amount not to exceed one hundred twenty (120%) percent of the cost of installation, for improvements it may deem necessary or appropriate including: streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments as shown on the final map and required by the "Map Filing Law", 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, or public improvements of open space; provided that no more than ten (10%) percent of the total performance guarantee shall be required to be in cash, and the balance shall be in the form of a bond from a bonding company, approved by the Borough Council, or an irrevocable letter of credit, provided the letter of credit meets the requirements of N.J.S.A. 40:55D-53.5.
The Borough Engineer shall review the improvements required by the Planning Board which are to be bonded and shall itemize their cost. The Borough Engineer's itemization shall be the basis for determining the amount of performance guarantee and maintenance guarantee required by the Planning Board. The Borough Engineer shall forward his estimate of the cost of improvements to the applicant within thirty (30) days of the date of receipt of an applicant's request for the estimate. The applicant may appeal the Borough Engineer's estimate to the Borough Council, which shall decide the appeal within forty-five (45) days of the Borough Clerk's receipt of the appeal in writing. The applicant's right to further appeal shall be governed by N.J.S.A. 40:55D-53.4.
(b)
The furnishing of a maintenance guarantee to be posted with the Borough Clerk for a period not to exceed two (2) years after final acceptance of the improvement, in an amount not to exceed fifteen (15%) percent of the cost of the improvement, as determined by the Borough Engineer. In the event that governmental agencies or public utilities other than the Borough of Mantoloking will own the utilities to be installed by operation of law or if the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Borough of Mantoloking for such utilities or improvements.
(2)
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 a performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed one hundred twenty (120%) percent of the cost of the installation as determined as of the time of the passage of the resolution.
(3)
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 complete such improvements either prior to or after the receipt of the proceeds of the guarantee.
(4)
Upon substantial completion of all required appurtenant utility improvements, and the connection of the improvements to the public system, the obligor may notify the Borough Council in writing, by certified mail addressed in care of the Borough Clerk, of the completion or substantial completeness of the improvements, and shall send a copy of the written notice to the Borough Engineer. Upon receipt of the notice, the Borough Engineer shall inspect all improvements of which such notice has been given and shall file a detailed report, in writing, with the Borough Council, indicating either approval, partial approval or rejection of such improvements with a statement of reasons for any rejection. The cost of the improvements rejected shall be set forth.
(5)
The Borough Council shall either approve, partially approve or reject the improvements, on the basis of the report of the Borough Engineer and shall notify the obligor in writing, by certified mail, of the contents of the report and the action of the Borough Council not later than forty-five (45) days after receipt of the Borough Engineer's report. Where partial approval is granted, the obligor shall be released from all liability pursuant to its performance guarantee except for the improvements not yet approved; provided that thirty (30%) percent of the amount of the performance guarantee posted may be retained to ensure completion of all improvements. Failure of the Borough Council to send or provide such notification to the obligor within forty-five (45) days of the Borough Engineer's report shall be deemed to constitute approval of the improvements and the obligor and surety, if any, shall be released from all liability pursuant to the performance guarantee for such improvements.
(6)
If any portion of the required improvements is rejected, the Borough Council may require the obligor to complete such improvements and, upon completion, the same procedure of notification as set forth in this section shall be followed.
(7)
The obligor shall reimburse the Borough for all reasonable inspection fees paid the Borough Engineer for the foregoing inspection of improvements; provided that the Borough may require of the applicant a deposit for all or a portion of the reasonably anticipated fees to be paid to the Borough Engineer for such inspection. The deposit shall not exceed the greater of five hundred ($500.00) dollars or five (5%) percent of the cost of improvements, except for extraordinary circumstances.
(8)
In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38, then the provisions of this section shall be applied by stage or section.
I.
Filing of subdivision plats.
(1)
Final approval of a subdivision shall expire ninety-five (95) days from the date of signing of the plat unless within such period the applicant filed the plat with the County Recording Officer. The Planning Board may, for good cause shown, extend the period for recording for an additional period not to exceed one hundred ninety (190) days from the date of signing of the plat.
(2)
The Planning Board may extend the ninety-five (95) day or one hundred ninety (190) day period if the applicant proves to the reasonable satisfaction of the Planning Board that the applicant was barred or prevented directly or indirectly from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities, and that the applicant applied promptly for and diligently pursued the required approvals. The length of the extension shall be equal to the period of delay caused by the wait for the required approvals as determined by the Planning Board.
(3)
Final approval of a subdivision shall be evidenced by affixing to the plat the signature of the Chairman and Secretary of the Planning Board, or a copy of the certificate of the Secretary of the Planning Board indicating that the Planning Board failed to reach a decision on the subdivision application within the prescribed time. The signatures of the Chairman and Secretary of the Planning Board shall not be affixed until the applicant has posted the guarantees required pursuant to this chapter.
J.
Selling land before final subdivision approval.
(1)
If, before final subdivision approval has been granted, any person transfers or sells, or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval, as owner or agent, any land which forms a part of a subdivision for which Borough approval is required by this chapter, such person shall be subject to a penalty not to exceed one thousand two hundred fifty ($1,250.00) dollars; provided, however, that each lot disposition so made may be deemed a separate violation.
(3)
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 applicant, his assigns or successors, to secure the return of any deposit made or purchase price paid, in addition to a reasonable search fee, survey expenses and title closing expenses, if any. Any such action must be brought within two (2) years after the date of the recording of the instrument of transfer, sale or conveyance of the land, or within six (6) years, if unrecorded.
K.
Certificates showing approval.
(1)
The prospective purchaser, prospective mortgagee, or any other person interested in any land which forms part of a subdivision, or which formed part of such a subdivision as of August 1, 1973, may apply in writing to the Borough Clerk for the issuance of a certificate certifying whether or not such subdivision has been approved by the Planning Board. Such application shall contain a diagram showing the location and dimension of the land to be covered by the certificate and the name of the owner thereof.
(2)
The Borough Clerk shall make and issue such certificate within fifteen (15) days after the receipt of the written application and the fees required by this chapter and by N.J.S.A. 54:5-14 and 54:5-15. The Borough Clerk shall keep a duplicate copy of each certificate, consecutively numbered, including a statement of the fee charged, in a binder as a permanent record of his or her office.
(3)
Each such certificate shall be designated a "Certificate as to Approval of Subdivision of Land" and shall certify:
(a)
That there exists in the Borough of Mantoloking a duly established Planning Board and that there is an ordinance controlling subdivision of land adopted under the authority of the "Municipal Land Use Law of 1975, c. 291 as amended and supplemented." (N.J.S.A. 40:55D-1 et seq.);
(b)
Whether the subdivision, as it relates to the land shown in the application, has been approved by the Planning Board, and if so, the date of such approval and any extensions and terms thereof, showing that the subdivision of which the lands are a part is a validly existing subdivision; and
(c)
If the subdivision has not been approved, whether the subdivision is statutorily exempt from the requirement of approval as provided in N.J.S.A. 40:55D-1 et seq.
(4)
The Borough Clerk shall be entitled to demand and receive for such certificate issued by him or her a reasonable fee not in excess of that provided in N.J.S.A. 54:5-14 and 54:5-15. The fees so collected by the Borough Clerk shall be paid over to the Borough.
§ 30-23 Performance and maintenance guarantees.
A.
Performance guarantee.
(1)
Requirements; form; rights.
(a)
Improvements; cost.
[1]
Prior to the filing of a final plat, recording of minor subdivision deeds, or as a condition of final site plan approval, or as a condition to the issuance of a zoning permit, the developer shall have filed with the Borough Clerk a performance guarantee sufficient in amount to equal the total cost to the Borough, as estimated by the Borough Engineer, for installation of those on-site improvements required by an approval or developer’s agreement, ordinance or regulations to be dedicated to a public entity that have not yet been installed, including the following as shown on the approved plans or plat:
[a]
Streets.
[b]
Pavement.
[c]
Gutters.
[d]
Curbs.
[e]
Sidewalks.
[f]
Street Lighting.
[g]
Street Trees.
[h]
Surveyor’s monuments.
[i]
Water mains.
[j]
Sanitary sewers.
[k]
Community septic systems.
[l]
Drainage structures.
[m]
Public improvements of open space.
[n]
Any grading necessitated by the preceding improvements.
[o]
Privately owned perimeter buffer landscaping, provided, however that a developer may choose to post a separate performance guarantee for the privately-owned perimeter buffer landscaping.
(b)
Such guarantee shall assure the installation of such improvements on or before an agreed date, guarantee the completion of all improvements without damage to or interference with adjacent properties or public facilities and hold the Borough Council and Borough Planning Board or Zoning Board of Adjustment and their employees and agents harmless with respect to any acts of the developer, its agents, successors or assigns.
(c)
The total estimated cost to the Borough of constructing all improvements shall be based upon the estimated contract construction costs, which would prevail upon expiration of the guarantee period, and shall also include appropriate allowances for contract-related costs such as engineering, legal, financial and other usual costs, which shall be estimated to be 20% of the estimated contract construction costs.
(d)
Such performance guarantee may be in the form of cash, certified check, negotiable securities, a performance bond issued by a bonding company or surety company approved by the Borough Council or any other type of surety acceptable to and approved by the Borough Attorney and Borough Council, provided that at least 10% of the performance guarantee shall be in cash or certified check. The balance of said performance guarantee shall be in the form of cash, certified check, certificate of deposit, an irrevocable letter of credit (said letter to be issued by a financial institution whose deposits are insured by the Federal Savings and Loan Insurance Corporation or Federal Deposit Insurance Corporation) or a bond issued by a surety or bonding company authorized to do business in New Jersey; provided, however, that all rights, including the right to interest with dividends, shall be assigned to the Borough of Mantoloking in a form of assignment acceptable to the Borough Attorney for the period of the bond and that the principal amount of the passbook or certificate of deposit, together with interest, shall be returned to the developer upon completion of the bonded improvements, or, in the event of default, both interest and principal shall be used by and for the benefit of the Borough in the completion of said improvements.
(e)
The form of the performance guarantee shall be subject to the approval of the Borough Attorney.
(f)
Subject to N.J.S.A. 40:55D-1 et seq., as amended and supplemented, all rights in the performance guarantee, including the right to any interest earned on any deposits, shall belong to the Borough of Mantoloking.
(g)
Notwithstanding the requirement of Subsection A(1) above, when a letter of credit which has been previously accepted pursuant to Subsection A(1) as a performance guarantee is about to expire, it may be renewed administratively by the Borough Attorney, provided that all pertinent requirements are met by the applicant.
(h)
In the event of default, the principal and any interest shall be used for the benefit of the Borough in the completion of the improvements.
(2)
All guaranties authorized by this Chapter shall run to and be in favor of the Borough of Mantoloking in the County of Ocean.
(3)
Such performance guarantee shall run for a period to be fixed by the Borough Council, but in no case for a term of more than two years. However, with the consent of the owner and the surety, if there is one, the Borough Council may, by resolution, extend the term of such performance guarantee for an additional period not to exceed one year. The amount of the performance guarantee may be revised by the Borough Council from time to time to reflect work progress, increasing costs and changing conditions in regard to the uncompleted or unacceptable portions of the required improvements. If the required improvements have not been installed in accordance with the performance guarantee, the obligor and surety shall be liable thereon, at the option of the municipality, for:
(4)
Municipal Engineer list and report.
(a)
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 guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactorily completed bonded 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 bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon, the Municipal Engineer shall inspect all improvements covered by 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.
(b)
The list prepared by the Municipal Engineer shall state, in detail, with respect to each bonded 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 guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection A of this section.
(5)
Approval or rejection of governing body.
(a)
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Municipal Engineer or reject any or all of these bonded 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 guarantee relating to the improvements accepted in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee 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 guarantee, with respect to those approved bonded 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 total performance guarantee and “safety and stabilization guarantee” posted may be retained to ensure completion and acceptability of all improvements. The “safety and stabilization guarantee” shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction. For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection A of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee and “safety and stabilization guarantee” to ensure completion and acceptability of bonded improvements as provided above; except that any amount of the performance guarantee attributable to bonded improvements for which a “temporary certificate of occupancy guarantee” has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30 percent.
(b)
If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection A(4) 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.
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 guarantee 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 guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee 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.
(c)
In the event that the obligor has made a cash deposit with the municipality or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee 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 guarantee.
(6)
If any portion of the required improvements are rejected, the Borough Council may require the obligor to complete such improvements, and, upon completion, the same procedure of notification as set forth in this section shall be followed.
(7)
Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Borough Committee or the Borough Engineer.
B.
Safety and stabilization guarantee.
(1)
The developer shall furnish a “safety and stabilization guarantee” in favor of the Borough of Mantoloking to ensure that the Borough has an adequate guarantee to return the property that has been disturbed to a safe and stable condition or otherwise implement measures to protect the public from access to an unsafe or unstable condition.
(2)
The Borough shall be permitted to access the guarantee when:
(a)
Site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure; and
(b)
Work has not recommenced within 30 days following the provision of written notice by the municipality to the developer of the municipality’s intent to claim payment under the guarantee.
(c)
At the developer’s option, the “safety and stabilization guarantee” may be included as a line item in the performance guarantee rather than in the form of a separate guarantee.
(d)
The amount of the safety and stabilization guarantee shall be calculated pursuant to N.J.S.A. 40:55D-53.4 as follows:
(e)
The safety and stabilization guarantee shall be released upon the determination of the Borough engineer that the development of the project site has reached a point that the improvements installed are adequate to avoid any potential threat to public safety.
C.
Temporary certificate of occupancy guarantee.
(1)
In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a “temporary certificate of occupancy guarantee” in favor of the Borough of Mantoloking in an amount equal to 120% of the cost of installation of only those improvements or items which remain to be completed or installed under the terms of the temporary certificate of occupancy and which are required to be installed or completed as a condition precedent to the issuance of the permanent certificate of occupancy for the development, unit, lot, building or phase of development and which are not covered by an existing performance guarantee.
(2)
Upon posting of a “temporary certificate of occupancy guarantee,” all sums remaining under a performance guarantee which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released.
(3)
The scope and amount of the “temporary certificate of occupancy guarantee” shall be determined by the Borough Engineer.
(4)
The “temporary certificate of occupancy guarantee” shall be released by the Borough Engineer upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.
D.
Maintenance guarantee.
(1)
A maintenance guarantee shall be furnished by the developer prior to the release of the performance guarantee in an amount equal to 15% of the installation of the improvements covered under the performance guarantee along with the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any.
(2)
The developer may elect to furnish such maintenance guarantee either by maintaining on deposit with the Borough the ten-percent cash or certified check portion of the performance guarantee provided in accordance with of this chapter or by a bond issued by a bonding company or surety company, or other type of surety acceptable to and approved by the Borough Attorney and Borough Council.
(3)
The maintenance guarantee shall begin with the release of the performance guarantee and shall run for a period of two years. The guarantee shall automatically expire at the end of the established term.
(4)
The maintenance guarantee shall be to the effect that the applicant, developer, owner or user guarantees the complete maintenance of all improvements for a period of two years from the release of his performance guaranty. Should he fail in his obligation to properly maintain all improvements, the Borough may, on 10 days' written notice, or immediately in the case of hazard to life, health or property, proceed with necessary repair or replacement of any unacceptable improvements and charge the cost thereof against the guaranty. At the end of the maintenance guaranty, the cash or certified check on deposit will be returned to the developer less any sums, properly documented by the Borough, which have been expended to repair or replace any unsatisfactory improvements.