Prospect Park City Zoning Code
PART 5
Administration Provisions
§ 235-1601 Administration.
These rules, regulations and standards shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Borough of Prospect Park. Any action taken by the Land Use Board under the terms of this chapter shall give the primary consideration to the requirements of this chapter and to the welfare of the entire community.
§ 235-1602 Amendments.
All provisions of this chapter may be amended in accordance with applicable laws.
§ 235-1603 Appeals.
A.
Any interested party may appeal to the governing body any final decision of the Board of Adjustment approving an application for development pursuant to N.J.S.A. 40:55D-70(d) (commonly referred to as a "use variance"). This right of appeal shall not be construed to restrict any interested party to obtain a review by any court of competent jurisdiction according to law.
B.
All other appeals from the Board of Adjustment and from the Planning Board shall be to a court of competent jurisdiction according to law.
§ 235-1604 Appeal procedure.
A.
The Board of Adjustment must first make a final decision by adopting a resolution setting forth findings of fact and conclusions of law, and publishing that decision as required.
B.
An appeal to Mayor and Council from a decision of the Zoning Board function of the Land Use Board under this section may be made by an interested party affected, provided such appeal shall be made within 10 days of the date of publication of the decision.
C.
An appeal shall be made by serving the Borough Clerk with a written notice of appeal, specifying the grounds therefor, the name and address of the appellant, and the name and address of his attorney, if he is represented.
(1)
The appellant shall provide 12 copies of the notice and 12 copies of the resolution for distribution by the Borough Clerk.
(2)
The appellant shall provide 12 copies of the official transcript(s), and 12 copies of a list of names and addresses of all persons who appeared at the Land Use Board hearings who identified themselves on the record and gave testimony or statements in favor of or in opposition to the application.
(3)
The Borough Clerk shall forward a copy of the notice and resolution to Mayor and Council, with a copy of the notice also forwarded to the Secretary of the Land Use Board.
(4)
The Borough Clerk shall keep a record of the date the transcript is furnished.
(a)
Upon receiving a copy of a notice of appeal, the Secretary of the Land Use Board shall forward to the Borough Clerk the record of appellant's case before the Zoning Board function of the Land Use Board, except for the transcript, which the appellant shall provide.
(b)
The Secretary shall furnish the appellant with a list of documents which the Secretary has forwarded to the Borough Clerk.
(c)
If the appellant or any other interested party is of the opinion that the record furnished by the Secretary of the Land Use Board is not complete, such party may furnish to the Borough Clerk, the Secretary of the Land Use Board and all interested parties what he believes to be additional portions of the record.
(d)
Notice of the time and place of the meeting to hear the appeal shall be given by the Borough Clerk, by personal service or certified mail, to the appellant, to applicant, to their attorneys, to those entitled to notice because they have paid the fee therefor, to those who appeared at the Land Use Board meeting who identified themselves and gave testimony or statements in favor of or against the application, and to the Secretary of the Land Use Board at least 10 days prior to the date of the meeting. The Borough Clerk shall maintain a list of those given notice and shall forward copies of the list to persons requesting it.
(e)
The appeal shall be decided by the Mayor and Council only upon the record established before the Land Use Board. The parties may submit oral and written argument on the record at the meeting to hear the appeal. Any interested parties will be heard. The Borough Clerk shall provide for verbatim recording of the meeting either by stenographic, mechanical or electronic means, and shall provide for transcripts of the meeting. A transcript or a duplicate recording in lieu thereof shall be furnished to any interested party for a reasonable fee.
(f)
The Mayor and Council shall conduct the hearing and decide the appeal within 45 days of the date appellant furnished the transcript to the Borough Clerk. Otherwise, unless appellant consents in writing to an extension, the Mayor and Council's inaction shall constitute a decision affirming the action of the Zoning Board function of the Land Use Board. The Mayor and Council may reverse, remand or affirm wholly or in part, or may modify the final decision of the Zoning Board. An affirmative vote of the majority of the full membership of the Mayor and Council shall be necessary to reverse, remand or modify any final action of the Zoning Board function of the Land Use Board. Any Council member not present at the hearing may vote if said Council member shall review the record and the transcript of the hearing before the Mayor and Council.
(g)
An appeal to the Mayor and Council shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the Zoning Board certifies to the Mayor and Council, after the notice of appeal has been filed, that by reason of facts stated in the certification, a stay would, in the Zoning Board's opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court on application upon notice to the board from whom the appeal is taken and on good cause shown.
(h)
The Borough Clerk shall mail a copy of Mayor and Council's decision to the appellant, or, if represented, then to his attorney without charge, and, for a reasonable charge, to any interested party who has requested it, not later than 10 days after the date of the decision. The Borough Clerk shall publish a brief notice of the decision in the official newspaper. The period of time in which an appeal to the court of competent jurisdiction may be made shall run from the date of publication to the decision.
§ 235-1701 Establishment and composition of Planning/Land Use Board.
There is hereby created and established pursuant to c. 291, P.L. 1975,[1] in the Borough of Prospect Park a Planning/Land Use Board of nine members consisting of the following four classes:
A.
Class I: the Mayor.
B.
Class II: one of the officials of the municipality other than a member of the governing body to be appointed by the Mayor.
C.
Class III: a member of the governing body to be appointed by it.
D.
Class IV: eight other citizens of the municipality to be appointed by the Mayor. The Mayor shall appoint six citizens as regular members and the remaining two members shall serve as the alternate members. The members of Class IV shall hold no other municipal office, position or employment with the Borough.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
§ 235-1702 Terms.
A.
The term of the member composing Class I shall correspond with his or her official tenure. The terms of the members comprising Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first.
B.
The terms of all Class IV members, excluding alternate members, first appointed pursuant to this chapter shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed evenly over the first four years after their appointment, as determined by resolution of the governing body; provided, however, that no term of any member shall exceed four years. Thereafter, all Class IV members, excluding alternate members, shall be appointed for terms of four years except as otherwise hereinabove provided. All terms shall run from January 1 of the year in which the appointment is made. Nothing contained within this section shall be deemed to affect the current members or terms of the individuals currently serving on the Planning Board. These individuals shall continue to serve on the Planning/Land Use Board under their current terms.
C.
The terms of alternate Class IV members first appointed pursuant to this chapter shall be so determined that, to the greatest practicable extent, the expiration of such term shall be distributed evenly over the first two years after the appointment as determined by resolution of the governing body; provided, however, that no term of any alternate member shall exceed two years. Thereafter, all alternate members shall be appointed for terms of two years. All terms shall run from January 1 of the year which the appointment is made. Nothing contained within this section shall be deemed to affect the current members or terms of the individuals currently serving on the Planning Board. These individuals shall continue to serve on the Planning/Land Use Board under their current terms.
§ 235-1703 Vacancies.
If a vacancy in any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.
§ 235-1704 Organization.
A.
The Planning/Land Use Board shall elect a Chairman and Vice Chairman from the members of Class IV and select a Secretary who may be either a member of the Planning/Land Use Board or a municipal employee designated by it.
B.
The two alternate members of this Board appointed by the governing body shall be designated by the appointing authority as "Alternate No. 1" and "Alternate No. 2," respectively, and each alternate shall retain said designation during the term for which he was appointed.
C.
During the absence or disqualification of any regular member, the Chairperson shall appoint one of the alternate members to serve in the place of said regular member; provided, however, that where the alternate member is designated to serve in place of the regular member who is disqualified from participating in the hearing of a particular case, the alternate member shall be designated to serve only with respect to such case.
D.
An alternate member who has been designated to sit in place of a regular member and who has participated in any hearing or matter coming before the Board shall continue to act in the place of such regular member until the final disposition of said matter by the Board.
E.
In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.
F.
When a regular member has been present and has participated in the first hearing on any matter, no alternate member shall be designated to serve during the absence of such regular member during any adjourned or continued hearing or hearing on the same matter unless said alternate member was present at such first hearing, any prior, adjourned or continued hearing on such matter, or, in the event of absence from the meeting, has complied with Subsection I.
G.
An alternate member who has been designated to serve in the place of an absent or disqualified regular member shall, during the period of his service, enjoy all of the rights and privileges and shall be subject to all of the duties and responsibilities pertaining to regular members, but no alternate member shall be eligible to serve as Chairperson or Vice Chairperson of the Board.
H.
Alternate members may participate in discussions of the proceedings, but may not vote except in the absence or disqualification of a regular member, nor shall any vote 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.
I.
All members who are absent for one or more meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearings from which he was absent, and certifies, in writing, to the Board that he has read such transcript or listened to such recording.
§ 235-1705 Attorney.
There is hereby created the office of Planning/Land Use Board Attorney. The Planning/Land Use Board may annually appoint and fix the compensation of or agree upon the rate of compensation of the Planning/Land Use Board Attorney, who shall be an attorney other than the Municipal Attorney.
§ 235-1706 Experts and staff.
The Planning/Land Use Board may also employ or contract for the services of experts and other staff and services as it may deem necessary. The Board shall not, however, exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
§ 235-1707 Planning/Land Use Board Administrator/Secretary.
There is created hereby the position of Planning/Land Use Board Administrator/Secretary who shall be appointed by the Planning/Land Use Board, after consultation with and acceptance by the Borough Council.
§ 235-1708 Powers and duties generally.
The Planning/Land Use Board is authorized to adopt bylaws governing its procedural operation. It shall also have the following powers and duties:
A.
To make and adopt and from time to time amend a Master Plan for the physical development of the Borough including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the planning of the Borough, in accordance with the provisions of N.J.S.A. 40:55D-28.
B.
To administer the provisions of the Land Subdivision Ordinance and Site Plan Review Ordinance of the Borough in accordance with the provisions of said ordinances and the Municipal Land Use Law of 1975, N.J.S.A. 40:55D-1 et seq.
C.
To participate in the preparation and review of programs or plans by state or federal law or regulations.
D.
To assemble data on a continuing basis as part of a continuous planning process.
E.
To consider and make report to the governing body within 35 days after referral as to any proposed development regulation submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26a, and also pass upon other matters specifically referred to the Planning/Land Use Board by the Borough Council, pursuant to the provisions of N.J.S.A. 40:55D-26b.
F.
When reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment:
(1)
Variances pursuant to N.J.S.A. 40:55D-70c from lot area, lot dimensional setback and yard requirements, provided that such relief from lot area requirements shall not be granted for more than one lot.
(2)
Direction pursuant to N.J.S.A. 40:55D-34 for issuance of a permit for building or structure in the bed of a mapped street or public drainageway, flood-control basin or public area reserved pursuant to N.J.S.A. 40:55D-32.
(3)
Direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit for a building or structure not related to a street. Whenever relief is requested pursuant to this subsection, notice of a hearing on the application for development shall include reference to the request for a variance or direction for issuance of a permit as the case may be.
(4)
To perform such other advisory duties as are designated to it by ordinance or resolution of the governing body for the aid and assistance of the governing body or other agencies or officers.
§ 235-1709 Duties of Planning/Land Use Board Administrator/Secretary.
The duties of the Planning/Land Use Board Administrator/Secretary shall include the following:
A.
Receive all applications for development, determine whether such applications are complete as set forth by the Borough ordinance, notify applicants whether submissions are complete or incomplete, solely for the purpose of placing the application on the calendar, within the time provided by law;
B.
Establish the calendar of cases for the meetings of the Planning/Land Use Board;
C.
Notify the applicants of the dates upon which matters will be heard in sufficient time so that notices can be given within the time required by N.J.S.A. 40:55D-12;
D.
Attend all Planning/Land Use Board meetings and provide for the making of a verbatim record of all proceeding before each Planning/Land Use Board;
E.
F.
Maintain and have general charge and control of all records of the Planning/Land Use Board and Zoning Officer, take minutes of meetings of the Planning/Land Use Board and prepare same as required by the Municipal Land Use Law, and receive and present the correspondence of the Board and Zoning Officer;
G.
Keep a record of all complaints received and all actions taken to abate any violations of the Borough zoning ordinances and immediately notify the proper board or official of said complaint. Prepare such correspondence or documents needed by the Zoning Officer to fulfill the Zoning Officer's duties under these ordinances;
H.
Provide general administrative support to the Zoning Officer and Land Use Board.
§ 235-1710 Time limits.
A.
Minor subdivisions and site plans. Minor subdivision approvals shall be granted or denied within 45 days of the date of certification of submission of a complete application to the Planning/Land Use Board or within such further time as may be consented to by the applicant. Approval of a minor subdivision shall expire 190 days from the date of Planning/Land Use Board approval unless within such period a plat in conformity with such approval and the provisions of the Map Filing Law,[1] or a deed clearly describing the approved minor subdivision, is filed by the developer with the County Recording Officer, the Borough Engineer and the Borough Tax Assessor. Any such plat or deed must be signed by the Chairman and the Secretary to the Planning/Land Use Board before it will be accepted for filing by the County Recording Officer.
[1]
Editor's Note: See N.J.S.A. 46:26B-1 et seq.
B.
Preliminary approval of site plans and subdivisions. Upon submission of a complete application for a subdivision of 10 or fewer lots, the Planning/Land Use Board shall grant or deny preliminary approval within 45 days of the date of such submission or within such further time as may be consented to by the developer. Upon submission of a complete application for a subdivision of more than 10 lots, the Planning/Land Use Board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the Planning/Land Use Board shall be deemed to have granted preliminary approval for the subdivision.
C.
Ancillary powers. Whenever the Planning/Land Use Board is called upon to exercise its ancillary powers before granting a variance as set forth in § 235-1708F of this chapter, the Planning/Land Use Board shall grant or deny approval of the application within 95 days after submission by the developer of a complete application or within such further time as may be consented to by the applicant. Failure of the Planning/Land Use Board to act within the period prescribed shall constitute approval of the application and a certificate from the Secretary of the Planning/Land Use Board as to the failure of the Planning/Land Use Board to act shall be issued on request of the applicant.
D.
Final approval. Application for final subdivision or site plan approval shall be granted or denied within 45 days of submission of a complete application or within such further time as may be consented to by the applicant. Final approval of a major subdivision shall expire 95 days from the date of signing of the plat, unless within such period the plat shall have been duly filed by the developer with the county recording officer. The Planning/Land Use Board may, for good cause shown, extend the period for recording for an additional period not to exceed 190 days from the date of signing of the plat.
§ 235-1711 Procedure for filing applications.
Applications for development within the jurisdiction of the Planning/Land Use Board pursuant to the provisions of c. 291, P.L. 1975,[1] shall be filed with the Borough Clerk. The applicant shall file, at least 14 days before the date of the monthly meeting of the Board, nine copies of a sketch plat, nine copies of an application for minor subdivision approval, nine copies of an application for major subdivision approval or nine copies of an application for site plan review or conditional use approval. At the time of filing the application, but in no event less than 10 days prior to the date set for hearing, the applicant should also file all plot plans, maps or other papers required by virtue of any provision of this chapter or any rule of the Land Use Board, and same shall be available for public inspection during normal business hours in the office of the Borough Clerk. The Borough Clerk shall inform the applicant of the steps to be taken to initiate applications and of the regular meeting date of the Board.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
§ 235-1712 Citizens' Advisory Committee.
The Mayor may appoint one or more persons as a Citizens' Advisory Committee to assist or collaborate with the Planning/Land Use Board in its duties, but such person or persons shall have no power to vote or take other action required of the Board. Such person or persons shall serve at the pleasure of the Mayor.
§ 235-1713 Rules and regulations.
The 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.
§ 235-1714 Appeals and applications.
A.
Appeals to the Planning/Land Use Board may be taken by any person aggrieved, or by any officer, department, board or bureau of the Borough affected by any decision of the administrative officer. Each appeal shall be taken within the 65 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal was taken, together with seven copies of such notice, with the Borough Clerk. Said notice of appeal shall specify the grounds for the appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
B.
Applications addressed to the original jurisdiction of the Planning/Land Use Board without prior application to an administrative officer shall be filed with the Borough Clerk. Seven copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps, or other papers required by virtue of any provision of this chapter or any rule of the Planning/Land Use Board. The applicant shall obtain all the necessary forms from the Borough Clerk. The Borough Clerk shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.
C.
An appeal stays all proceedings in furtherance of the action in respect of which the decision appealed from was made, unless the officer from whom the appeal is taken certifies to the Planning/Land Use Board, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Planning/Land Use Board or by the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.
§ 235-1715 Power to reverse or modify decisions.
In exercising the above-mentioned power, the Planning/Land Use Board may, in conformity with the provisions of P.L. 1975, c. 291,[1] or amendments thereto or subsequent statutes applying, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and make such other requirement, decision or determination as ought to be made and, to that end, have all the powers of the administrative officer from whom the appeal was taken.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
§ 235-1716 Expiration of variance.
Any variance from the terms of this chapter hereafter granted by the Planning/Land Use Board permitting the erection or alteration of any structure or structures, or permitting a specified use of any premises, shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance, or unless such permitted use has actually been commenced, within nine months from the date of entry of the judgment or determination of the Planning/Land Use Board, except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Planning/Land Use Board to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.
§ 235-1717 Powers granted by law.
A.
The Planning/Land Use Board shall have such powers as are granted by law to:
(1)
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of this chapter.
(2)
Hear and decide requests for interpretation of the Zoning Map or this chapter, or for decisions upon other special questions upon which such Board is authorized by this chapter to pass.
(3)
Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions, or by reason of an extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation in this chapter would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the owner of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; provided, however, that no variance shall be granted under this subsection to allow a structure or use in a district restricted against such structure or use, and further provided that the proposed development does not require approval by the Planning/Land Use Board of a subdivision, site plan or conditional use in conjunction with which the Planning/Land Use Board shall review a request for variance pursuant to Section 47a of the Municipal Land Use Law of 1975 (c. 291, P.L. 1975).[1]
[1]
Editor's Note: See N.J.S.A. 40:55D-60.
(4)
Grant a variance to allow a structure or use in a district restricted against such structure or use in particular cases and for special reasons, but only by the affirmative vote of at least 2/3 of the full authorized membership of the Board.
B.
No variance or other relief may be granted under the provisions of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and this chapter. Any application under any subsection of this section may be referred to any appropriate person or agency, including the Planning/Land Use Board, for its report, provided that such reference shall not extend the period of time within which the Planning/Land Use Board shall act.
§ 235-1718 Additional powers.
The Planning/Land Use Board shall, in addition to the powers specified in § 235-1717 of this Part 5, have power given by law to:
A.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a mapped street or public drainageway, flood-control basin or public area reserved on the Official Map.
B.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street. The Planning/Land Use Board shall have the power to grant subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37 et seq. or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the Board is reviewing an application for approval for a use variance pursuant to § 235-1717A(4) of this chapter.
§ 235-1719 Time limit for decision.
A.
The Planning/Land Use Board shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer or the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-70b.
B.
Failure of the Board to render a decision within such 120-day period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
§ 235-1720 Conflicts of interest.
No member of the Planning/Land Use Board shall act on any matter in which he has either directly or indirectly any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto.
§ 235-1721 Meetings.
A.
Meetings of the Planning/Land Use Board shall be scheduled no less often than once a month and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.
B.
Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which meetings shall be held on notice to its Board members and the public in accordance with all applicable legal requirements.
C.
No action shall be taken at any meeting without a quorum being present.
D.
All actions shall be taken by a majority vote of the members present at the meeting, except as otherwise required by any provision of N.J.S.A. 40:55D-1 et seq.
§ 235-1722 Minutes.
Minutes of every regular or special meeting shall be kept and 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, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Borough Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceeding concerning the subject matter of such minutes. Such interested party may be charged a fee for reproduction of the minutes for his use as provided for in the rules of the Board.
§ 235-1723 Fees.
Fees for applications or for the rendering of any service by the Planning/Land Use Board or any member or its administrative staff which are not otherwise provided by ordinance may be provided for and adopted as part of the rules of the Board, and copies of said rules or of the separate fee schedule shall be available to the public.
§ 235-1724 Hearings.
A.
Rules. The Planning/Land Use Board may make rules governing the conduct of hearings before such bodies, which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.
B.
Oaths. The officer presiding at the hearing or such person as he may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, P.L. 1953, c. 1938 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
C.
Testimony. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
D.
Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
E.
Records. The Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof, on request, to any interested party at his or her expense.
F.
Recusal. Class I and Class III members shall not participate in the consideration of applications for development which involve relief pursuant to Subsection d. of Section 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70).
§ 235-1725 Notice requirements for hearings.
Whenever a hearing is required on an application for development pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall give notice thereof as follows:
A.
Public notice shall be given by publication in the official newspaper of the municipality at least 10 days prior to the date of the hearing.
B.
Notice shall be given to the owners of all real property as shown on the current tax duplicate or duplicates located within 200 feet in all directions of the property which is the subject of such hearing and whether located within or without the municipality in which the applicant's land is located. Such notice shall be given by serving a copy thereof on the owner as shown on the said current tax duplicate or his agent in charge of the property or by mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate. A return receipt is not required. Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.
C.
Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality, which notice shall be in addition to the notice required to be given pursuant to Subsection B of this section to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.
D.
Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the Official County Map or on the County Master Plan adjoining other county land or situated within 200 feet of a municipal boundary.
E.
Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.
F.
Notice shall be given by personal service or certified mail to the Director of the Division of State and Regional Planning in the Department of Community Affairs of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk pursuant to Subsection b of Section 6 of Chapter 291 Laws of New Jersey 1975.[1]
[1]
Editor's Note: See N.J.S.A. 40:55D-10b.
G.
All notices specified in this section shall be given at least 10 days prior to the date fixed for hearing and the applicant shall file an affidavit of proof of service with the board holding the hearing on the application for development.
H.
Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.
I.
Form of notice. All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing; the nature of the matters to be considered; identification of the property proposed for development by street address if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Municipal Tax Assessor's office; and the location and times at which any maps and documents for which approval is sought are available as required by law.
§ 235-1726 List of property owners.
Pursuant to the provisions of N.J.S.A. 40:55D-12c, the Tax Assessor of the Borough of Prospect Park shall, within seven days after receipt of a request therefor and upon receipt of payment of the maximum fees provided for in said section of the statute, make and certify a list from the current tax duplicate of names and addresses of owners to whom the applicant is required to give notice pursuant to § 235-1725B of this chapter.
§ 235-1727 Decision.
A.
Each decision on any application for development shall be set forth in writing as a resolution of the Board, which shall include findings of fact and legal conclusions based thereon.
B.
A copy of the decision shall be mailed by the Board within 10 days of the date of the decision to the applicant or, if represented, to his attorney, without separate charge. A copy of the decision shall also be mailed to all persons who have requested it and who have paid the fee prescribed by the Board for such service. A copy of the decision shall also be filed in the office of the Borough Clerk, who should make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the municipality.
§ 235-1728 Publication of decision.
A brief notice of every final decision shall be published in the official newspaper of the municipality. Such publication shall be arranged by the Planning/Land Use Board Administrator/Secretary, as the case may be, without separate charge to the applicant. Said notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision.
§ 235-1729 Payment of taxes.
Pursuant to the provisions of N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-65, every application for development submitted to the Planning/Land Use Board shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of such application, or, if it is shown that taxes or assessments are delinquent on said property, any approvals or other relief granted by the Board shall be conditioned upon either the prompt payment of such taxes or assessments or the making of adequate provision for the payment thereof in such manner that the municipality will be adequately protected.
§ 235-1730 Conditional approvals.
A.
Pursuant to the provisions of N.J.S.A. 40:55D-22, in the case of an application for development submitted to the Planning/Land Use Board proposing a development that is barred or prevented directly or indirectly by a legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health and welfare, the Planning/Land Use Board shall process such application of development in accordance with said Act and this chapter, or rules and regulations as established by said Board, and, if such application for development complies with the Borough's development regulations, the Planning/Land Use Board shall approve such application conditioned on removal of such legal barrier to development.
B.
In the event that development proposed by an application for development requires an approval by a governmental agency other than the Planning/Land Use Board, the Planning/Land Use Board shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that said Board shall make a decision on any application for development within the time period provided in this chapter or within an extension of such period as has been agreed to by the applicant unless the Planning/Land Use Board is prevented or relieved from so acting by operation of law.
§ 235-1731 Appeals to Land Use Board.
An appeal to the Planning/Land Use Board may be taken by any interested party affected by any decision of the administrative officer of the Borough based on or made in the enforcement of this chapter or Official Map. Such appeals shall be taken within 65 days by filing a notice of appeal in the manner set forth in § 235-1714A of this chapter, and in accordance with the provisions of N.J.S.A. 40:55D-64 et seq. of the Municipal Land Use Law of 1975.
§ 235-1732 Appeals from Land Use Board to governing body.
Any appeal taken from an approved application for development of the Planning/Land Use Board may be taken to the governing body, provided such appeal be made within 10 days of the date of publication of such final decision of the Planning/Land Use Board. Such appeal shall be made in accordance with the provisions of N.J.S.A. 40:55D-17.
§ 235-1733 Construal of terms.
Whenever a term is used in this chapter which is defined in Chapter 291 of the Laws of New Jersey 1975,[1] such term is intended to have the meaning set forth in the definition of such term found in said statute, unless a contrary intention is clearly expressed from the context of this chapter.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
§ 235-1801 Permits and plans already approved.
Nothing in this chapter shall require any change in a construction permit, site plan, or zoning variance which was approved before the enactment of this chapter, but is in violation of this chapter, provided that construction based on such a construction permit shall have been started within one year from the effective date of this chapter, and, in the case of a site plan or variance, a construction permit shall have been issued within one year following the effective date of this chapter. In all instances, the project shall be continuously pursued to completion, otherwise said approvals and permits shall be void.
§ 235-1802 Compliance.
All requirements of this chapter shall be met at the time of any erection, enlargement, moving or change in use. All developments resulting from subdivision and site plan approvals shall comply with all the design and performance standards, including conditions imposed by the approving authority as shown on the approved plat and/or included on the resolution adopted by the approving authority.
§ 235-1901 Applications.
Before any permit shall be issued for a conditional use, an application shall be made to the approving authority.
A.
The approving authority shall grant or deny the application after public hearing, but within 95 days of submission of a complete application to the administrative officer or within such further time as may be consented to by the applicant.
B.
Notice of the hearing for a conditional use shall include reference to all matters being heard, including site plan and/or subdivision, and the approving authority shall review and approve or deny the subdivision or site plan simultaneously with the conditional use application.
C.
Failure of the approving authority to act within the required time period shall constitute approval of the application.
D.
In reviewing the conditional use application, the approving authority shall review the number of employees or users of the property, the requirements set forth in this chapter, and shall give consideration to all reasonable elements which would affect the public health, welfare, safety, comfort and convenience such as, but not limited to, the proposed use(s), the character of the area, vehicular travel patterns and access, pedestrianways, landscaping, lighting, signs, drainage, sewage treatment, potable water supply, utilities, and structural location(s) and orientation(s), and shall conduct a public hearing on the application.
E.
A conditional use shall be deemed to be a permitted use in the zoning district in which it is located, and each conditional use shall be considered as an individual case.
F.
In all requests for approval of conditional uses, the burden of proof shall be on the applicant.
G.
All conditional uses shall require site plan review and approval by the approving authority, including changes, modifications or alterations from one conditional use to another conditional use, or changes, modifications or alterations within the same conditional use.
§ 235-1902 Approvals.
In approving a conditional use, a time limit of one year from the date of the approval shall be set, within which time the owner shall secure a construction permit, otherwise the approval shall be null and void. The approving authority may, for good cause shown, extend the period for securing a construction permit for an additional period not exceeding six months.
§ 235-2001 Obligation to pay application fees and fees for professional services incurred during the course of review of applications for development.
An applicant submitting an application for development shall pay such application fees as are due the Borough and all reasonable costs for professional services, including, without limitation, engineering, legal, planning, licensed stenographic court reporting and other services, incurred by the Borough in connection with the review, approval or denial by the Planning Board or Zoning Board of Adjustment, or other advisory committee or commission of the Borough, or by the Mayor and Council of any aspect thereof, including appeals, informal review of a concept plan by such boards and reviews to insure that conditions of approvals have been satisfied. Such professional services may be by employees of the Borough who are professionals or professionals or consultants retained by the Borough on a general basis, or retained specially for an application by the board of jurisdiction, advisory committee or commission or the Borough. In conjunction with payment of such professional fees, the applicant shall make an escrow deposit in the amount and manner set forth herein and shall execute an agreement in a form provided by the Borough obligating itself to pay such fees. The application fee is a flat fee to cover direct administrative expenses and is nonrefundable.
§ 235-2002 Computation of fees for professional services.
In the case of Borough professionals not on an annual salary, but paid at an hourly rate for services, the cost to be billed shall be the amount actually billed for work done on the application at the rate which the professional bills the Borough for all municipal work of the same nature. In the case of a professional on salary from the Borough, the cost to be billed shall be the hourly prorated salary of the professional, multiplied by the number of hours spent on the application and further multiplied by 200% to include all staff support and overhead.
§ 235-2003 Accounting.
The Borough shall render a written final accounting to the applicant on the uses to which the escrow deposit was put. Thereafter, the Borough shall, upon written request, provide copies of the vouchers withdrawing funds from the escrow deposit to the applicant.
§ 235-2004 Amount of fees and escrow deposits due.
Each applicant shall, prior to an application for development being deemed complete, submit to the Borough Treasurer, in cash or by certified check or money order, the sums below as application fees and escrow deposits, together with a fully executed escrow agreement in the form provided by the Borough. Where one application for development includes more than one approval request (for example, a request for combined preliminary and final major subdivision approval or an application for development involving a new commercial building with a parking lot), the sum of the individual required fees shall be paid:
A.
Residential site plan and subdivision fees:
Application Fees | Escrow to be Deposited | |
|---|---|---|
Concept plan | $400 | 0 to 20 lots/units: $100 per lot or unit 21 + lots/units: $2,000 + $50 per lot/unit in excess of 20 |
Minor subdivision | $400 | $500 + $300 per lot |
Site plan and/or major subdivision | ||
Preliminary: | ||
0 to 10 units or lots | $400 | $1,000 + $100 per lot or unit |
11 to 30 units or lots | $500 | $2,000 + $75 per lot or unit |
31 or more units or lots | $600 + $25 per lot or unit | $5,000 + $50 per lot or unit |
Final: | ||
0 to 10 units or lots | $400 | $200 + $75 per lot or unit |
11 to 30 units or lots | $500 | $300 + $50 per lot or unit |
31 or more units or lots | $600 + $25 per lot or unit | $1,000 + $50 per lot or unit |
B.
Commercial/industrial development application:
Application Fees | Escrow to be Deposited | |
|---|---|---|
Concept plan | $400 | $1,000 |
0 to 3 lots | $450 | $1,000 |
4 or more lots | $600 | $2,000 + $250 per lot |
NOTES: |
If an application involves 10 or more acres, an additional $100 for each acre, or fraction thereof, in excess of 10 acres. |
C.
Commercial/industrial development application involving new building area:
Application Fees | Escrow to be Deposited | |
|---|---|---|
Concept plan | $300 | $3,000 |
Preliminary: | ||
0 to 1,999 square feet | $400 | $3,000 |
2,000 to 19,999 square feet | $400 | $3,000 + $150 per each 1,000 square feet of gross floor area |
20,000 + square feet | $400 | $5,000 + $50 per each 1,000 square feet above 20,000 square feet of gross floor area |
Final: | ||
Total floor plan: | ||
0 to 1,999 square feet | $250 | $1,500 |
2,000 to 19,999 square feet | $250 | $2,500 |
20,000 + square feet | $250 | $1,500 + $0.12 per square feet |
D.
Other submissions.
Application Fees | Escrow to be Deposited | |
|---|---|---|
Conditional use approval | $400 | $750 |
Appeals under N.J.S.A. 40:55D-70a | $400 | $500 |
Interpretation or special questions under N.J.S.A. 40:55D-70b | $400 | $500 |
One- or two-family residences, hardship variances under N.J.S.A. 40:55D-70c | $150 | $400 |
All other hardship variances under N.J.S.A. 40:55D-70c | $400 | $1,000 |
All use variances N.J.S.A. 40:55D-70d | $600 | $1,250 |
Permits under N.J.S.A. 40:55D-34 and 40:55D-36 | $400 | $250 |
Modifications of previously approved plans without changes to FAR | $400 | $1,250 |
Resubmittal of an application for preliminary or final major subdivision or site plan approval where applicant has submitted an application deemed incomplete | $200 | No additional escrow |
List of persons within 200 feet including area map | $20 | None |
Subdivision certificate of approval | $20 | None |
E.
Amended submissions:
Application Fees | Escrow To Be Deposited | |
|---|---|---|
Revised or amended plans or submission for single- or two-family dwellings | $50 | An amount not to exceed 50% of the original escrow requirement as determined by the designated agent of the Board of jurisdiction |
Revised or amended plans or submission: | An amount not to exceed 50% of the original escrow requirement as determined by the designated agent of the Board of jurisdiction | |
Minor subdivision | $100 | |
Major subdivision | $450 | |
Variance | $300 | |
Site plan | $400 | |
All other applications | $250 |
§ 235-2005 Inspection fees.
The amount of fees to be paid to the Borough for engineering inspections and incidental engineering services in connection with approved applications for development, as defined in N.J.S.A. 40:55D-3, shall be charged in the manner set forth in § 235-2012.
§ 235-2006 Miscellaneous.
A.
For site plans involving only expansion, additions of existing buildings, fees and escrow deposits shall be calculated on the area of the expansion or addition in accordance with § 235-2004.
B.
For modifications within the footprint of existing buildings, fees and escrow deposits shall be calculated in accordance with § 235-2004.
C.
Professional review fees for subdivision or site plan applications may be proportioned to stages of submittals as approved by the board of jurisdiction.
D.
Unexpended escrow deposits for concept plans shall be credited against escrow deposits due upon filing of an application for development.
§ 235-2007 Escrow deposits.
Within 45 days after the filing of an application for development, the Building Department shall review the application to determine whether the escrow amounts set forth above are adequate, including whether escrow fees should be charged for applications for which the escrow deposit is listed as "none required." In conducting such review, the following criteria shall be considered:
A.
The presence or absence of public water or sewer servicing site.
B.
Environmental considerations, including, but not limited to, geological, hydrological and ecological factors.
C.
Traffic impact of the proposed development.
D.
Impact of the proposed development on existing aquifer or water quality.
E.
Impact on improvements which might require off-tract or off-site contribution agreements.
F.
Impact on open space, landscaping, woodlands and the like.
G.
The need for a developer's agreement between the applicant and the Borough.
H.
The anticipated costs for professional services to be paid by the applicant in accordance with § 235-2001.
(1)
Whether the applicant has requested a special meeting or meetings of the Land Use Board or Mayor and Council, in which event the applicant shall be responsible for all costs incurred by the Borough as a result of such special meetings, including, without limitation, costs for attendance of Board Secretary, custodial services in opening and closing the building in which the meeting is held and all similar reasonable expenses.
(2)
If additional sums are deemed necessary, the applicant shall be notified of the required additional amount and shall add such sum to the escrow within 15 days of receipt of such notice for additional sums. Each applicant shall, prior to the application being deemed complete, submit to the Borough Treasurer, in cash or by certified check or money order, the amount of additional escrow deposit determined by the Building Department to be due in accordance with this section, and shall complete all forms as required by such designated official. The board of jurisdiction may make the continued current payment of all escrow fees due and to be due under this section from an applicant a condition of the approval of any application.
§ 235-2008 Payment for professional services when funds in escrow deposit have been reduced.
A.
Upon the funds in the escrow account being reduced to 30% of the amount initially deposited, the Building Department shall after notification by the Borough Treasurer forthwith bill the applicant for any charges for professional services, it being the intent of this article the 30% be retained in the escrow account at all times until any refunds are due.
B.
The Building Department shall also bill the applicant forthwith for any professional services covered by this article, whether or not funds have been refunded pursuant to § 235-2010.
C.
Payment is due within 15 days of receipt of such bills.
§ 235-2009 Failure to pay amount due.
A.
If an applicant has failed to pay any amounts due under this article, the Borough may:
(1)
Stop construction until such amounts, together with penalties equal to an interest payment on unpaid bills of 1 1/2% per month and any legal fees and expenses necessary to collect any unpaid bills, are paid;
(2)
Deny the issuance of any construction permits or certificates of occupancy if such amounts are due and payable; or
(3)
Deem any approval conditioned by the board of jurisdiction on applicant's payment of any amounts under this article to be null and void as though the board of jurisdiction had denied such application on the date of conditional approval.
B.
In addition, all escrow charges which have been billed and remain unpaid shall become a lien on the premises with respect to which said charges are required and shall remain so until paid. Said overdue charges shall accrue the same interest from time to time as taxes upon real estate in the Borough. The Borough shall have the same remedies for the collection thereof with interest, costs and penalties as it has by law for the collection of taxes upon real estate. The applicant shall be responsible for all costs of collection of unpaid escrow fees, including attorneys' fees and all costs. The board of jurisdiction may in its discretion dismiss, adjourn or deny the application if the applicant has failed to pay any amounts due under this article.
§ 235-2010 Appeal of amounts charged.
A.
The applicant shall notify, in writing, the Mayor and Council, with copies to the Chief Financial Officer, the approving authority, and the professional, whenever the applicant disputes a charge against escrow for services rendered.
B.
The process for reviewing the appeal, and those processes for further consideration of the Mayor and Council's decision, are stipulated in N.J.S.A. 40:55D-53.2a et seq.
§ 235-2011 Unexpended escrow funds.
All unexpended escrow funds shall be refunded to the applicant within a reasonable time after the last certificate of occupancy is issued and all conditions and requirements of development approvals and any development agreement are satisfied, or such earlier time as the Building Department certifies that all professional services to be paid by escrow funds have been completed and billed. The refunding process will be in accordance with the guidelines and procedures established by the Borough in effect at that time. In no event, however, shall any application fees required pursuant to this article be refunded.
§ 235-2012 Fee for inspection of constructed improvements.
A.
Each applicant shall pay all reasonable costs (including overtime charged by any professional) for the Borough inspection of the construction site and off-site improvements and for all improvements not otherwise inspected pursuant to the Uniform Construction Code, and shall execute an agreement in a form provided by the Borough obligating itself to do so. An escrow fund will be established within the Borough before construction begins, and such funds shall be used to pay the fee and costs of professional and incidental services incurred by the Borough to inspect the construction.
B.
An initial fee of 5% of the estimated cost of the improvements shall be deposited with the Borough prior to the issuance of any construction permit. The basis for fees to be charged by the Borough for inspection services shall be the same fee basis the Borough uses to pay for Borough related projects, including overtime charges. The estimated costs of improvements shall be calculated by the Borough Engineer based on current competitive prices for similar work in the area.
§ 235-2013 Itemized bills.
A monthly itemized bill for fees not paid from escrowed funds will be forwarded to the applicant when the escrow amount has been reduced to less than 30% of the amount initially deposited, it being the intent of this article that 30% of such amount be retained in the escrow account until the inspections are completed. Payment is due within 15 days of receipt of such bill. Interest at the rate of 1 1/2% per month shall be charged on all payments not received within 15 days of receipt of the bill. All unexpended escrow funds shall be returned to the applicant within a reasonable time after receipt of written request of the applicant, and the Borough Engineer certifies that the inspections have been completed, and the release of escrow funds approved.
§ 235-2014 Use of performance bonds.
Any performance bond, letter of credit or other guarantee provided by an applicant shall provide that the Borough may, in its sole and absolute discretion, apply any funds available from any such performance bonds, letter of credit or other guarantee posted by the applicant against amounts owed under this article by providing applicant 15 days' prior written notice of the Borough's intent to draw against the performance bond, letter of credit or guarantee. If the Borough shall draw against the performance bond, letter of credit or other guarantee, the applicant shall replenish said draw within 15 days of written notice. Failure to restore funds shall be default, and the Borough shall have, in addition to any others, all rights set forth in § 235-2007 hereof.
§ 235-2015 Deposit of escrow funds.
The Borough Treasurer shall deposit all escrow funds in accordance with N.J.S.A. 40:55D-53.1, and shall charge the administration fee permitted thereunder to defray the cost of administrating said account.
§ 235-2101 Guarantees and inspections.
A.
No final plat shall be approved until all items required to be bonded (on-site, off-site, on-tract and off-tract) have been installed, approved by the Borough Engineer and accepted by the governing body, or their installation shall have been provided for by a performance guarantee accepted and approved by the governing body. No partially completed facility shall be accepted for any item which has further stages of work or which will need to be altered or reworked due to the installation of any other facility. A performance bond for an approved site plan shall be provided at the discretion of the approving authority.
B.
The performance guarantee estimate of the cost of improvements shall be submitted by the applicant to the Borough Engineer, who will accept or modify the amounts in that estimate as part of his report on final plat review. The approving authority or Borough Engineer may request the applicant to update this estimate as required.
C.
The applicant shall submit the performance guarantee required for final plat approval to the administrative officer for review and then to the Chief Financial Officer for processing to the appropriate account. Final plat submission shall not be made until the performance guarantee has been accepted and approved by the Borough Engineer.
D.
The performance guarantee shall consist of the performance guarantee cost estimate and performance bond, in which the developer shall be principal and the surety shall be an acceptable surety company licensed to do business in the State of New Jersey, and/or cash or certified check or letter of credit which shall be submitted to the Building Department and then deposited with the Borough Treasurer. The Treasurer shall issue a receipt for such deposit and shall retain them to be returned to the developer on completion of all required work or, in the event of default, to be used by the Borough to complete the requirements. If the improvements have not been completed in accordance with the standards or within the stipulated time, but no longer than two years, the obligor and surety for any bond shall be liable thereon for the reasonable cost of completing the improvements. Upon authorization by the governing body, the Municipal Attorney shall take the necessary steps to obtain such costs for the obligor and surety. The Borough may, either prior to or after receipt of the proceeds thereof, complete such improvements.
E.
The total performance guarantee shall equal 120% of the performance guarantee cost estimate, 90% of this total shall be either certified check, bank money order, letter of credit, or surety bond of a bonding company approved by and at the option of the Borough. The remaining 10% shall be in cash and shall be paid in like manner and under the same conditions as the security aforesaid. In the event of default, the 10% cash fund shall be first applied to complete the requirements and the cash, certified check, or surety bond shall thereafter be resorted to, if necessary. The cash or surety bond may recite the foregoing provision. The Borough Engineer's certification that the principal has satisfactorily installed or has defaulted in meeting the required standards of construction shall be the basis for governing body action which accepts or rejects the improvements, withholds approval, or extends the time allowed for installation of the improvements.
F.
Prior to beginning construction, the developer shall arrange for a preconstruction conference between the developer, contractor, and Borough Engineer. The Borough Engineer shall be notified by the developer at least five days in advance of the start of construction. The cost of inspections shall be 5% of the total site construction cost estimates developed by the applicant and approved by the Borough Engineer.
G.
No work shall be done without permission from and inspection by the Borough Engineer. No underground installations shall be covered until inspected and approved. The Borough Engineer's office shall be notified after each of the following phases of the work has been completed so that he may inspect the work: road subgrade; sidewalk, curb and gutter forms; curbs and gutters; road paving (after each coat in the case of priming and sealing); sanitary sewer pipes, drainage pipes and other drainage structures before backfilling; shade trees and planting strips; street name signs; and monuments.
H.
All utility installations installed by utility companies shall not be subject to the inspection requirements.
I.
Occupancy permits will be issued only when the installation of curbs, utilities, functioning water supply and sewage treatment facilities, necessary storm drainage to insure proper drainage of the lot and surrounding land, rough grading of lots, soil stabilization, base course for the street and driveway, and sidewalks are installed to serve the lot and structure for which the permit is requested. Streets shall not receive surface course paving until all heavy construction is completed. Shade trees shall not be planted until all grading and earth moving is completed. Seeding or grass areas shall be the final operation.
J.
Inspections by the Borough Engineer shall not subject the Borough to claims, suits, or liability of any kind that may arise because of defects or negligence, it being recognized that to maintain safe conditions at all times on all parts of the tract is the obligation of the developer and his contractors or subcontractors, if any.
K.
After completing the improvements, the developer shall prepare two sets of the plans and the profiles amended to read "as constructed" and apply to the governing body for final inspection of the work. The Borough Engineer shall, within 30 days of completing the inspection, report, in writing, to the governing body indicating either approval, partial approval, or rejection of the improvements with a statement of reasons for any rejection. If partial approval is indicated, the cost of the improvements rejected shall be set forth.
L.
The governing body shall either approve, partially approve or reject the improvements and shall notify the obligor by certified mail of the contents of the Borough Engineer's report and the action of the approving authority with relation thereto, no later than 65 days after receipt of the notice from the obligor of the completion of the improvements. Where partial approval is granted, the obligor shall be released from liability pursuant to its performance guarantee, except for a portion sufficient to secure compliance with the remaining items. Failure of the governing body to send or provide such notification to the obligor within 65 days shall be deemed to constitute approval of the improvements and the obligor and surety, if any, shall be released from liability pursuant to such performance guarantee.
M.
If any portion of the required improvements is rejected, the approving authority may require the obligor to complete such improvements and, upon completion, the same procedure of notification as set forth shall be followed.
N.
Upon request of the developer in writing by certified mail, with copies to the Planning Board and Borough Engineer, the governing body may reduce the amount of the performance guarantee after considering the report of the Planning Board and the Borough Engineer. The performance guarantee retained shall be sufficient to cover the cost of uninstalled, uncompleted and defective improvements, engineering costs, and an amount equal to 15% of the cost of completed facilities to assure upkeep of these facilities until accepted by the governing body. Agreement to reduce the performance guarantee in accordance with this subsection shall not constitute approval or acceptance of any of the improvements by the governing body. The reduction shall first be in the surety portion of the performance bond, and only in cash portion after all the surety portion has been released.
O.
The approval of any plat under this chapter by the approving authority shall in no way be construed as acceptance of any street, drainage system, or other improvement required by this chapter, nor shall such plat approval obligate the Borough in any way to maintain or exercise jurisdiction over such street, drainage system, or other improvements. Acceptance of any street, drainage system or other improvement shall be implemented only by favorable action by the governing body.