Shrewsbury City Zoning Code
ARTICLE III
Administrative Procedures
§ 94-3.1 Land Use Board.
[Amended 6-22-1989 by Ord. No. 590; 12-10-1990 by Ord. No. 617; 12-13-1993 by Ord. No. 670; 11-13-1995 by Ord. No. 708; 10-5-2020 by Ord. No. 1076; 12-7-2020 by Ord. No. 2020-1077]
A.
Establishment. The Land Use Board presently in existence pursuant to N.J.S.A. 40:55D-23 is hereby continued, to consist of nine members of the following four classes and four alternates. The Land Use Board shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment. Notwithstanding, any application pending before the Borough of Shrewsbury Zoning Board of Adjustment at the time Ordinance No. 2020-1077 becomes effective and for which testimony has been presented to that Board shall be heard by the Zoning Board of Adjustment, after which, the Zoning Board of Adjustment shall be abolished. All applications for which testimony has not been presented to the Board of Adjustment shall be transferred to the Land Use Board.
(1)
Class I: the Mayor, or the Mayor's designee in the absence of the Mayor.
(2)
Class II: one of the officials of the Borough, other than a member of the Borough Council, to be appointed by the Mayor, provided that, if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Land Use Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Land Use Board member if there is both a member of the Land Use Board and a member of the Board of Education among the Class IV members.
(3)
Class III: a member of the Borough Council, to be appointed by it.
(4)
Class IV: six other citizens of the Borough, to be appointed by the Mayor. The members of Class IV shall hold no other municipal office position, except that one may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Land Use Board as required by N.J.S.A. 40:56A-1 shall be a Class IV Land Use Board member unless there is among the Class IV or alternate members of the Land Use Board a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Land Use Board. For the purpose of this section, membership on a Borough board or commission whose function is advisory in nature, and the establishment of which is discretionary and not required by statute, shall be considered the holding of municipal office.
(5)
Alternates. The Mayor shall also appoint four alternate members who shall meet the qualifications of Class IV members. Alternate members shall be designated by the Mayor at the time of appointment as "Alternate No. 1," "Alternate No. 2," "Alternative No. 3," and "Alternative No. 4."
B.
Terms.
(1)
The term of the member composing Class I shall correspond to the Mayor's official tenure, or, if the member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's official tenure. The terms of the members composing Class II and Class III shall be for one year or shall terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or a Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his/her term of office as a member of the Environmental Commission, whichever comes first.
(2)
The term of a Class IV member who is also a member of the Board of Education shall terminate whenever he/she is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first.
(3)
The terms of all Class IV members first appointed pursuant to this chapter and N.J.S.A. 40:55D-23 shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be evenly distributed over the first four years after their appointment; provided, however, that no term of any member shall exceed four years, and further provided that nothing herein shall affect the term of any present member of the Land Use Board, all of whom shall continue in office until the completion of the term for which they were appointed. Thereafter, all Class IV members shall be appointed for terms of four years, except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.
(4)
The terms of alternate members shall be two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. A vacancy occurring otherwise than by expiration of term shall be filled by the appointing authority for the unexpired term only. Alternate members may participate in discussions of the proceedings 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.
(5)
Class I and Class III members shall not participate in the consideration of applications for development which involve relief pursuant to N.J.S.A. 40:55D-70(d) and § 94-3.1J(2)(d) below.
C.
Conflicts. No member or alternate member of the Land Use Board shall be permitted to act on any matter in which he/she has, either directly or indirectly, any personal or financial interest.
D.
Lack of quorum. If the Land Use Board lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-23b or 40:55D-23.1 from acting on a matter due to the member's personal or financial interest therein, the Land Use Board shall publicly invoke the Doctrine of Necessity.
E.
Vacancies. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment, as above provided, for the unexpired term.
F.
Removal. Any member other than a Class I member, after a public hearing if he/she requests one, may be removed by the Borough Council for cause.
G.
Organization of Board. The 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 Land Use Board or a municipal employee designated by it.
H.
Land Use Attorney. There is hereby created the office of Land Use Attorney. The Land Use Board may annually appoint, fix the compensation of or agree upon the rate of compensation of the Land Use Attorney, who shall be an attorney other than the Borough Attorney.
I.
Expenses, experts and staff. The Borough Council shall make provisions in its budget and appropriate funds for the expenses of the Land Use Board. The Land Use Board may employ or contract for the services of experts and other staff and services as it may deem necessary. The Land Use Board shall not, however, exceed, exclusive of gifts or grants, the amount appropriated by the Borough Council for its use.
J.
Powers and duties.
(1)
The Land Use 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 (N.J.S.A. 2A:67A-1 et seq.) shall apply. The Land Use Board shall have the following powers and duties:
(a)
To prepare and, after public hearing, adopt or amend a Master Plan or component parts thereof to guide the use of lands within the Borough in a manner which protects public health and safety and promotes the general welfare in accordance with the provisions of N.J.S.A. 40:55D-28 and to prepare and adopt a Reexamination Report of the Master Plan and Zoning and Land Development Regulations in accordance with the provisions of N.J.S.A. 40:55D-89.
(b)
To administer site plan and land subdivision reviews in accordance with the provisions of this chapter and N.J.S.A. 40:55D-37 through 40:55D-59.
(c)
To grant exceptions from certain requirements for subdivision and site plan approval pursuant to N.J.S.A. 40:55D-51.
(d)
To approve conditional use applications in accordance with the provisions of this chapter and pursuant to N.J.S.A. 40:55D-67.
(e)
Prior to the adoption of a development regulation, including this chapter, revision or amendment thereto, to make and transmit to the Borough Council, within 35 days after referral, a report including identification of any provisions in the proposed development regulations revision or amendment which are inconsistent with the Master Plan and recommendations concerning these inconsistencies and any others as the Land Use Board deems appropriate. The Borough Council, when considering the adoption of a development regulation, revision or amendment thereto, shall review the report of the Land Use Board and may disapprove or change any recommendations by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendations. Failure of the Land Use Board to transmit its report within the thirty-five-day period shall relieve the Borough Council from the requirements of this subsection in regard to the proposed development regulation, revision or amendment thereto referred to the Land Use Board. Nothing in this section shall be construed as diminishing the application of N.J.S.A. 40:55D-32 to any Official Map or amendment or revision thereto, or of N.J.S.A. 40:55D-62a to any zoning regulation or any amendment or revision thereto.
(f)
To participate in the preparation and review of programs or plans required by state or federal law or regulations.
(g)
To assemble data on a continuing basis as part of a continuing planning process.
(h)
Variances.
[1]
When reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant:
[a]
Variances pursuant to N.J.S.A. 40:55D-70c.
[b]
Direction pursuant to N.J.S.A. 40:55D-34 for issuance of a permit for a 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.
[c]
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.
[2]
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.
[3]
Any variance hereafter granted by the Land Use Board permitting the erection or alteration of any structure or structures shall expire by limitation unless such construction or alteration has been actually commenced on each and every structure permitted by said variance, or unless such development has actually been commenced within 12 months from the date of publication of the notice of the judgment or determination of the 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 Land Use Board to a court of competent jurisdiction, until the termination in any manner of such proceeding. The Land Use Board may, for good cause, extend the time period for a period not to exceed six months. In no case shall the Board grant more than two such extensions. Where subdivision or site plan approval is required, the period of time for commencement of the development specified by the Land Use 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.
(i)
To review capital projects pursuant to N.J.S.A. 40:55D-31.
(j)
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 other Borough bodies, agencies or officers.
(2)
The Land Use Board shall further have the power to:
(a)
Hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the provisions of this chapter adopted pursuant to N.J.S.A. 40:55D-62 through 40:55D-68.
[1]
Appeals to the Land Use Board may be taken within the 20 days prescribed by N.J.S.A. 40:55D-72 by filing a notice of appeal with the officer from whom the appeal was taken, together with three copies of said notice with the Secretary of the Land Use Board. Said notice of appeal shall specify the grounds for said 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. A developer may file an application for development with the Land Use Board for action under any of its powers without prior application to an administrative officer.
[2]
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 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 cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the 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.
[3]
The Land Use 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 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.
(b)
Hear and decide requests for interpretation of the Zoning Map or zoning provisions of this chapter adopted pursuant to N.J.S.A. 40:55D-62 through 40:55D-68 or for decisions upon other special questions upon which such Board is authorized by this chapter to pass.
(c)
Grant, upon an application or an appeal, relief from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68, except those departures enumerated in Subsection J(2)(d) below (N.J.S.A. 40:55D-70d) or where the proposed development requires approval by the Land Use Board of a subdivision, site plan or conditional use, in conjunction with which the Land Use Board has power to review a request for a variance pursuant to N.J.S.A. 40:55D-47a, where:
[1]
The strict application of such regulation would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of a property for any of the following reasons:
[a]
By reason of exceptional narrowness, shallowness or shape of a specific piece of property;
[b]
By reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property; or
[c]
By reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon; or
[2]
The purposes of N.J.S.A. 40:55D-1 et seq. would be advanced by a deviation from the requirements of this chapter, and the benefits of the deviation would substantially outweigh any detriment.
(d)
Variances.
[1]
The Land Use Board has the power to grant, upon an application or an appeal, in particular cases and for special reasons, by affirmative vote of at least five members, a variance to allow departures from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68 to permit the following:
[a]
A use or principal structure in a district restricted against such use or principal structure.
[b]
An expansion of a nonconforming use.
[c]
Deviation from a specification or standard pertaining solely to a conditional use pursuant to Article IX of this chapter.
[d]
An increase in the permitted floor area ratio as defined in § 94-2.3 of this chapter and N.J.S.A. 40:55D-4.
[e]
An increase in the permitted density as defined in § 94-2.3 of this chapter and N.J.S.A. 40:55D-4, except as applied to the required lot area for a lot or lots for detached one- or two-dwelling-unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision.
[f]
A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.
[3]
No variance or other relief may be granted under the terms of N.J.S.A. 40:55D-70d 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. An application under this section may be referred to any appropriate person or agency, provided that such reference shall not extend the period of time within which the Land Use Board shall act.
(3)
The Land Use Board shall have the power to grant, to the same extent and subject to the same restrictions as the Land Use Board, subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37 through 40:55D-59 or conditional use approval pursuant to N.J.S.A. 40:55D-67, whenever the proposed development requires approval by the Land Use Board of a variance pursuant to N.J.S.A. 40:55D-70d. The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon the grant of all required subsequent approvals by the Land Use Board. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and this chapter. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided in N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to the aforesaid Subsection d of N.J.S.A. 40:55D-70 [§ 94-3.1J(2)(d) above] shall not be required.
(4)
The Land Use Board shall have the power to 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. The Land Use Board shall not exercise the power otherwise granted by this subsection if the proposed development requires approval by the Land Use Board of a subdivision, site plan or conditional use in conjunction with which the Land Use Board has power to direct the issuance of a permit pursuant this chapter and to N.J.S.A. 40:55D-60b.
(5)
The Land Use Board shall have the power to direct issuance of a permit pursuant N.J.S.A. 40:55D-36 for a building or structure not related to a street. The Land Use Board shall not exercise the power otherwise granted by this subsection if the proposed development requires approval by the Land Use Board of a subdivision, site plan or conditional use in conjunction with which the Land Use Board has power to direct the issuance of a permit pursuant to N.J.S.A. 40:55D-60c.
(6)
The Borough Council may, by ordinance, provide for the referral of any matters or class of matters to the Land Use Board before final action thereon by a municipal body or municipal officer having final authority thereon. The Land Use Board shall have made a recommendation regarding a matter authorized by ordinance to another municipal body. Such recommendation may be rejected only by a majority of the full authorized membership of such other body.
K.
Citizens' Advisory Committee. The Mayor may appoint one or more persons as a Citizens' Advisory Committee to assist or collaborate with the Land Use Board in its duties, but such person or persons shall have no power to vote or take other action required by the Board. Such person or persons shall serve at the pleasure of the Mayor.
L.
Environmental Commission. Whenever the Environmental Commission has prepared and submitted to the Land Use Board an index of the natural resources of the municipality, the Land Use Board shall make available to the Environmental Commission an informational copy of every application for development to the Land Use Board. Failure of the Land Use Board to make such informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
M.
Simultaneous review. The Land Use Board shall have the power to review and approve or deny conditional uses or site plans simultaneously with review for subdivision approval without the developer being required to make further application to the Land Use Board or the Land Use Board being required to hold further hearings. The longest time period for action by the Land Use Board, whether it be for subdivision, conditional use or site plan approval, shall apply. Whenever approval of a conditional use is requested by the developer, notice of the hearing on the plat shall include reference to the request for such conditional use.
N.
Conditional uses. The Land Use Board shall grant or deny an application for a conditional use within 95 days of submission of a complete application by a developer to the administrative officer or within such further time as may be consented to by the applicant. The review by the Land Use Board of a conditional use may also include site plan review. The time period for approval by the Land Use Board of conditional uses shall apply to such site plan review.
O.
Failure to act. Failure of the Land Use Board to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer (Land Use Board Clerk) as to the failure of the Land Use 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 purposes of filing subdivision plats.
P.
Periodic reexamination.
(1)
The Borough Council shall, at least every six years, provide for a general reexamination of the Borough Master Plan and Land Use and Development Regulations by the Land Use Board, which shall prepare and adopt by resolution a report on the findings of such reexamination. A copy of said report and resolution shall be sent to the Monmouth County Land Use Board and the Municipal Clerks of each adjoining municipality. The next reexamination shall be completed by August 1, 1988. Thereafter, a reexamination shall be completed at least once every six years from the previous reexamination. The reexamination report shall state:
(a)
The major problems and objectives relating to land development in the Borough at the time of the adoption of the last reexamination report.
(b)
The extent to which such problems and objectives have been reduced or have increased subsequent to such date.
(c)
The extent to which there have been significant changes in the assumptions, policies and objectives formed; and the basis for the Master Plan and Development Regulations as last revised, with particular regard to the density and distribution of population and land uses, housing conditions, circulation, conservation of natural resources, energy conservation and changes in state, county and Borough policies and objectives.
(d)
The specific changes recommended for the Master Plan or Development Regulations, if any, including underlying objectives, policies and standards, or whether a new plan or regulations should be prepared.
(2)
The absence of the adoption by the Land Use Board of a reexamination report pursuant to N.J.S.A. 40:55D-89 shall constitute a rebuttable presumption that the Borough Development Regulations are no longer reasonable.
Q.
The Land Use Board shall have the power to approve planned developments in order to encourage and promote flexibility and economy in layout and design in accordance with this chapter and pursuant to the provisions of N.J.S.A. 40:55D-39 and to grant approvals to general development plans consistent with the provisions of N.J.S.A. 40:55D-45. Prior to granting approval to any planned development, the Land Use Board shall find the following facts and conclusions:
(1)
That departures by the proposed development from zoning regulations otherwise applicable to the subject property conform to the Zoning Ordinance standards pursuant to N.J.S.A. 40:55D-65c.
(2)
That the proposals for maintenance and conservation of the common open space are reliable and the amount, location and purpose of the common open space are adequate.
(3)
That provisions through the physical design of the proposed development for public services, control over vehicular and pedestrian traffic and the amenities of light and air, recreation and visual enjoyment are adequate.
(4)
That the proposed planned development will not have an unreasonably adverse impact upon the area in which it is proposed to be established.
(5)
In the case of a proposed development which contemplates construction over a period of years, that the terms and conditions intended to protect the interests of the public and of the residents, occupants and owners of the proposed development in the total completion of the development are adequate.
R.
Referral. Any application to the Land Use Board may be referred by the Land Use Board to any appropriate person or agency, including the Shade Tree Commission and the Environmental Commission, for consideration and report; provided, however, that such referral shall not exceed the time within which the Land Use Board is required to act.
(1)
If such reports are not received by the Land Use Board within 45 days from the date or dates of such referral, the Land Use Board may proceed to act without further delay and without reference to such reports, should they be received after the expiration of such forty-five-day period.
(2)
When such a report is received from the Land Use Board within 45 days, the Land Use Board shall take no action inconsistent therewith except by the affirmative vote of a majority of the fully authorized membership of the Land Use Board.
(3)
The report of the Shade Tree Commission, Environmental Commission or any other person or agency shall be advisory only.
S.
Expiration of variance. Any variance hereafter granted by the 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 development has actually been commenced within 12 months from the date of publication of the notice of the judgment or determination of the 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 Land Use Board to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding. The Land Use Board may, for good cause, extend the time period for a period not to exceed six months. In no case shall the Board grant more than two such extensions. Where subdivision or site plan approval is required, the period of time for commencement of the development specified by the Land Use 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.
T.
Appeals of use variances. An appeal from the granting of a use variance under N.J.S.A. 40:55D-70d [§ 94-3.1J(2)(d) of this chapter] by the Land Use Board shall be taken to a court of competent jurisdiction (New Jersey Superior Court), provided that such appeal shall be made within 45 days of the date of publication of such final decision of the municipal agency. Such appeal shall be made in accordance with the provisions of N.J.S.A. 40:55D-17.
U.
Annual report on applications and appeals. The Land Use Board shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report, on its findings on Zoning Ordinance provisions which were the subject of variance requests and its recommendations for zoning regulation and map amendment or revision, if any. The Land Use Board shall send copies of the report and resolution to[1]
[1]
Editor's Note: So in original.
§ 94-3.2 (Reserved) [1]
§ 94-3.3 Administrative provisions applicable to municipal agencies.
[Amended 12-13-1993 by Ord. No. 670; 10-5-2020 by Ord. No. 1076; 12-7-2020 by Ord. No. 2020-1077]
A.
Meetings.
(1)
Every municipal agency shall, by its rules, fix the time and place for holding its regular meetings for business authorized to be conducted by such agency. Regular meetings of the municipal agency shall be scheduled not less than once a month and shall be held as scheduled unless canceled for lack of applications for development to process.
(2)
The municipal agency may provide for special meetings, at the call of the Chairman or at the request of any two of its members, which shall be held on notice to its members and the public in accordance with municipal regulations and N.J.S.A. 10:4-6 et seq.
(3)
No action shall be taken at any meeting without a quorum being present.
(4)
All actions shall be taken by majority vote of a quorum except as otherwise required by N.J.S.A. 40:55D-32, 40:55D-34, 40:55D-62, 40:55D-63 and N.J.S.A. 40:55D-17e, 40:55D-26a and b and 40:55D-70d. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.
(5)
All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq.
(6)
An executive session for the purpose of discussing and studying any matters to come before the agency shall not be deemed a regular or special meeting within the meaning of N.J.S.A. 40:55D-1 et seq.
B.
Minutes. Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the municipal agency and of the persons appearing by attorney, the action taken by the municipal agency, the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the administrative officer (Land Use Board Clerk). Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party may be charged a reasonable fee for reproduction of the minutes in an amount sufficient to cover the cost of such reproduction of the minutes for his use.
C.
Hearings.
(1)
Required hearings. The Land Use Board shall hold a hearing on each application for development.
(2)
Rules for conducting hearings. The Land Use Board shall make rules governing the conduct of hearings before such body, which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or this chapter.
(3)
Filing of documents. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the administrative officer (Land Use Board Clerk). The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
(4)
Oaths. The officer presiding at the hearing or such person as he may designate shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, N.J.S.A. 2A:67A-1 et seq., shall apply.
(5)
Testimony. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and the number of witness.
(6)
Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
(7)
Verbatim recording. The municipal agency shall provide for the verbatim recording of the proceedings by either a stenographer or by mechanical or electronic means. The municipal agency shall furnish a transcript, or duplicate recording in lieu thereof, on request to any interested party at his expense.
(8)
Transcript charge. The municipal agency, in furnishing a transcript of the proceeding to an interested party at his expense, shall not charge such interested party more than the maximum permitted in N.J.S.A. 2B:7-4, as amended. Said transcript shall be certified in writing by the transcriber to be accurate.
(9)
Requirements for a certified shorthand reporter. A certified shorthand reporter shall be provided by an applicant at his expense for a major subdivision, major site plan or use variance application before a municipal agency. The applicant shall provide a certified copy of the transcript of the proceedings to the municipal agency at his expense. In the event that an applicant shall provide a certified shorthand reporter for any other type of application before a municipal agency, the applicant shall provide a copy of the transcript to the municipal agency if requested or in the event of a court case.
(10)
Voting eligibility. A member or alternate member of a municipal agency who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his or her absence from one or more of the meetings; provided, however, that such Board member or alternate member has available to him or her the transcripts or recordings of all of the hearings from which he or she was absent and certifies in writing to the municipal agency that he or she has read such transcript or listened to such recording.
D.
Notice requirements for hearing. Whenever public notice of a hearing is required on an application for development, the applicant shall give notice thereof at least 10 days prior to the date of the hearing in accordance with the following;
(1)
Public notice of a hearing on an application for development shall be given for all of the following:
(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.
(3)
Notice of a hearing requiring public notice pursuant to Subsection D(1) above shall be given to the owners of all real property as shown on the current tax duplicate or duplicates located within 200 feet in all directions of the property which is the subject of such hearing, provided that this requirement shall be deemed satisfied by notice to the condominium association, in the case of any unit owner whose unit has a unit above or below it, or horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by serving a copy thereof on the owner, as shown on 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 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. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners or homeowners on account of such common elements or areas. Notice of a hearing requiring public notice pursuant to Subsection D(1) shall be given to public utilities and cable television companies in accordance with Subsection D(8) of this section.
(4)
Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality, which notice shall be in addition to the notice required to be given pursuant to § 94-3.3D(3) of this chapter to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.
(5)
Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on all applications for development of property adjacent to an existing county road or proposed road shown on the Official County Map or on the County Master Plan, adjoining other county land or situated within 200 feet of a municipal boundary.
(6)
Notice shall be given by personal service or certified mail to the Commissioner of the New Jersey Department of Transportation of a hearing on any application for development of property adjacent to a state highway.
(7)
Notice shall be given by personal service or certified mail to the State Planning Commission of any hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the administrative officer pursuant to N.J.S.A. 40:55D-10b.
(8)
Notice to public utilities.
(a)
Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan requiring public notice pursuant to N.J.S.A. 40:55D-12 shall be given in the case of a public utility, cable television company or local utility which possesses a right-of-way or easement within the Borough and which has registered with the Borough in accordance with Subsection D(8)(b) below, by serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility or mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.
(b)
Every public utility, cable television company and local utility interested in receiving notice pursuant to Subsection D(8)(a) above and N.J.S.A. 40:55D-12h may register with the Borough if the public utility, cable television company or local utility has a right-of-way or easement in the Borough. The registration shall remain in effect until revoked by the public utility, cable television company or local utility or by its successor in interest.
(c)
The Tax Assessor shall adopt a registration form and shall maintain a record of all public utilities, cable television companies and local utilities which have registered with the Borough pursuant to Subsection D(8)(b) of this section. The registration form shall include the name of the public utility, cable television company or local utility and the name, address and position of the person to whom notice shall be forwarded, as required pursuant to Subsection D(8)(a) above. The information contained therein shall be made available to any applicant, as provided in N.J.S.A. 40:55D-12c.
(9)
The applicant shall file an affidavit of proof of service with the municipal agency holding the hearing on the application for the development in the event that the applicant is required to give notice pursuant to N.J.S.A. 40:55D-12 and this subsection.
(10)
Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.
(11)
Form of notice. All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing, the nature of the matters to be considered and identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Borough Tax Assessor's office and the location and times at which any maps and documents for which approval is sought are available for public inspection as required by law.
(13)
List of property owners furnished. Upon written request of an applicant, the administrative officer (Tax Assessor) shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to Subsection D(3) of this section. In addition, the Tax Assessor shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to Subsection D(8) of this section. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner or to any public utility, cable television company or local utility not on the list shall not invalidate any hearing or proceeding. A fee of $0.25 per name or $10, whichever is greater, shall be charged for such list.
E.
Decisions. Each decision on any application for development shall be reduced to writing and shall include findings of facts and conclusions based thereon.
(1)
Reduction to writing shall be accomplished through a resolution adopted at a meeting held within the applicable time period for taking action on the application for development or a resolution adopted at a meeting not later than 45 days after the date of the meeting at which action to grant or deny approval was taken memorializing said action. Where the agency fails to adopt a resolution, any interested party may apply to the Superior Court in a summary manner for an order compelling the agency to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorneys' fees, shall be assessed against the Borough.
(2)
The following members shall be eligible to vote on the resolution:
(a)
Where the action taken resulted from the failure of a motion to approve an application pursuant to § 94-3.3A(4) of this chapter, those members voting against the motion for approval shall be the members eligible to vote on the resolution.
(b)
In all other circumstances, only the members who voted for the action taken shall be eligible to vote on the resolution.
(3)
The following shall apply to adoption of the resolution:
(a)
The vote on a resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency.
(b)
The vote of a majority of those eligible members who are present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution.
(c)
The date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required.
(4)
Copies of the decision shall be distributed by the administrative officer (Land Use Board Clerk) as follows:
(a)
A copy shall be mailed within 10 days of the date of decision to the applicant or, if represented, then to his attorney, without separate charge.
(b)
A copy shall be filed in the office of the administrative officer and shall be made available for public inspection during reasonable hours.
(c)
A copy shall be made available to any interested party for a reasonable fee in an amount sufficient to cover the cost of such copy.
(5)
A brief notice of the decision shall be published in the official newspaper(s) of the Borough.
(a)
Such publication shall be arranged, and proof of publication shall be obtained, by the administrative officer (Land Use Board Clerk). Nothing herein shall be construed as preventing the applicant from arranging such publication if he so desires. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision.
(b)
Such notice shall be published within 30 days of the date of decision or 20 days of the date of mailing of a copy of the decision by the administrative officer (Land Use Board Clerk), whichever is later, or within such other appropriate period as may be determined by the municipal agency at the time of decision.
(c)
Failure of an applicant to publish as herein required shall render any approvals null and void.
F.
Conditional approvals.
(1)
In the event that a developer submits an application for development proposing a development that is barred or prevented, directly or indirectly, by legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health and welfare, the municipal agency shall process such application for development in accordance with the provisions of N.J.S.A. 40:55D-1 et seq. and this chapter; and if such application for development complies with the provisions of this chapter, the municipal agency shall approve such application conditioned on removal of such legal barrier to development.
(2)
In the event that development proposed by an application for development requires an approval of a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that the municipal agency shall make a decision on any application for development within the time period provided in this chapter and N.J.S.A. 40:55D-1 et seq. or within an extension of such period as has been agreed to by the applicant unless the municipal agency is prevented or relieved from so acting by the operation of law.
(3)
Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3, in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the municipal agency shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time period.
(4)
The municipal agency may impose such other conditions, including but not limited to those enumerated in Article VI of this chapter, as it deems appropriate.
(5)
In all cases, the municipal agency shall include a condition of approval setting forth the time within which all conditions of approval must be satisfied by the applicant. Failure of the applicant to meet all conditions of approval within the time specified or within such extensions thereof as the municipal agency may, from time to time, grant upon the request of the applicant shall render any approvals null and void.
G.
Tolling of running of period of approval. In the event that, during the period of approval heretofore or hereafter granted to an application for development, the developer is barred or prevented, directly or indirectly, from proceeding with the development otherwise permitted under such approval by a legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health or welfare and the developer is otherwise ready, willing and able to proceed with said development, the running of the period of approval shall be suspended for the period of time said legal action is pending or such directive or order is in effect.
H.
Payment of taxes. Pursuant to the provisions of N.J.S.A. 40:55D-39 and 40:55D-65, every application for development submitted to the 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 Borough will be adequately protected.
I.
Appeals to Borough Council. Any interested party may appeal to the Borough Council any final decision of the Land Use Board approving an application for development pursuant to § 94-3.1J(2)(d) and N.J.S.A. 40:55D-70d. Such appeal shall be made within 10 days of the date of publication of such final decision in accordance with the provisions of N.J.S.A. 40:55D-17.
J.
Time for decision. After the date an appeal is taken from the decision of a municipal officer or the submission of a complete application for development to the administrative officer, the approving authority shall render its decision within the maximum number of days as specified below or within such further time as may be consented to by the applicant. Where more than one type of application is involved, the longer time period shall apply.
Type of Application | Time Period (days) |
|---|---|
Site plans, minor | 45 |
Preliminary approval (site plans) | |
10 acres or less or 10 units or less | 45 |
More than 10 acres or 10 units | 95 |
Final approval (site plans) | 45 |
Subdivisions, minor | 45 |
Preliminary approval (subdivisions) | |
10 lots or less | 45 |
More than 10 lots | 95 |
Final approval (subdivisions) | 45 |
Conditional use authorization | 95 |
Variance | 120 |
Appeal from the decision of a municipal officer | 120 |
Direction for issuance of a building permit | 120 |
K.
Separation of applications. A developer whose proposed development requires a variance or direction of the issuance of a permit may elect to submit a separate application requesting the variance or direction of the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate granting of the variance or direction of the issuance of a permit shall be conditioned upon the granting of all required subsequent approvals by the same approving authority. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and this chapter. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided in the chapter for the approval in question, and any special vote shall not be required. In the event that the developer elects to submit separate consecutive applications, the time period for granting or denying each separate application shall be as provided in Subsection J above.
§ 94-3.4 Certificates and permits.
[Amended 12-13-1993 by Ord. No. 670; 8-18-2003 by Ord. No. 811; 10-5-2020 by Ord. No. 1076; 12-7-2020 by Ord. No. 2020-1077]
A.
Zoning permit.
(1)
Zoning permits shall hereafter be secured from the administrative officer (Zoning Officer) prior to:
(a)
The filing of or recording of a deed of or resubdivision of any land; a subdivision application; and/or an application for and/or issuance of any building permit.
(b)
The erection, construction, alteration, repair, remodeling, conversion, removal or destruction of any building or structure.
(c)
Application for and/or issuance of any permit for a new or expanded or relocated sign.
(d)
Application for and/or issuance of any permit for erection of a fence in conjunction with any nonfarm use.
(e)
Any change in use or occupancy (as herein defined) of any building, structure or land.
(f)
Any alteration exceeding 5,000 square feet in the natural condition of any undeveloped parcel of land, including, but not limited to, the alteration of drainage patterns, removal of soil, regrading and removal of trees and ground cover; provided, however, that such alterations located on and necessary to the operation of a farm, as defined in this chapter, shall not require a zoning permit.
(g)
Any use of any portion of any parcel of land for any activity regulated by this chapter.
(h)
The construction of any site improvement either above or below ground.
(i)
The issuance of any certificate of occupancy where no building permit was previously required.
(j)
The excavation, removal or addition of soil or fill to or from any site exceeding 10 cubic yards.
(2)
Prior to issuance of a zoning permit, the applicant shall have, where applicable, secured other required permits, including, but not limited to:
(a)
An access permit from the New Jersey Department of Transportation and/or Monmouth County Engineering Department.
(b)
A drainage permit from the New Jersey Department of Transportation.
(c)
A stream encroachment permit from the New Jersey Department of Environmental Protection.
(d)
A Coastal Area Facilities Review Act (CAFRA) permit from the New Jersey Department of Environmental Protection.
(e)
A wetlands permit from the New Jersey Department of Environmental Protection.
(f)
A riparian construction permit from the New Jersey Department of Environmental Protection.
(g)
The required permits from the United States Army Corps of Engineers and United States Coast Guard.
(h)
A sewerage and/or industrial waste treatment permit from the New Jersey Department of Environmental Protection.
(i)
A land disturbance permit from the Freehold Area Soil Conservation District.
(j)
A New Jersey state floodplain encroachment permit.
(k)
A letter of approval from the Monmouth County Sewerage Authority.
(3)
Prior to the issuance of a zoning permit, the applicant shall have secured all approvals required by this chapter and shall have met any and all conditions of any municipal agency approval.
B.
Certificates as to approval of subdivision of land.
(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 three years preceding the effective date of N.J.S.A. 40:55D-1 et seq., may apply, in writing, to the administrative officer for issuance of a certificate certifying whether or not such subdivision has been approved by the Land Use Board. Such application shall contain a diagram showing the location and dimensions of the land to be covered by the certificate and the name and the owner thereof.
(2)
The administrative officer (Land Use Board Clerk) shall make and issue a certificate within 15 days after receipt of such written application and the required fees therefor as set forth in § 94-3.14 of this chapter. Said officer 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 office.
(3)
Each such certificate shall be designated as a "certificate as to approval of subdivision of land" and shall certify:
(a)
Whether there exists in the Borough a duly established Land Use Board and whether there is an ordinance controlling subdivision of land and adopted under the authority of N.J.S.A. 40:55D-1 et seq.
(b)
Whether the subdivision, as it relates to the land shown in said application, has been approved by the Land Use 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.
(c)
Whether such subdivision, if the same has not been approved, is statutorily exempt from the requirement of approval as provided by N.J.S.A. 40:55D-1 et seq.
(4)
The administrative officer shall be entitled to demand and receive for such certificate issued a reasonable fee not in excess of those provided in N.J.S.A. 54:5-14 and 54:5-15. The fees so collected by such official shall be paid to the Borough.
(5)
Any person who shall acquire for a valuable consideration an interest in the lands covered by such certificates of approval of a subdivision in reliance upon the information therein contained shall hold such interest free of any right, remedy or action which could be prosecuted or maintained by the Borough pursuant to the provisions of N.J.S.A. 40:55D-55.
(6)
If the administrative officer designated to issue any such certificate fails to issue the same within 15 days after receipt of an application and the fees therefor, any person acquiring an interest in the lands described in such application shall hold such interest free of any right, remedy or action which could be prosecuted or maintained by the Borough pursuant to N.J.S.A. 40:55D-55.
(7)
Any such application addressed to the Borough Clerk shall be deemed to be addressed to the proper designated officer, and the Borough shall be bound thereby to the same extent as though the same was addressed to the designated official.
C.
Building permit. No building or structure shall be erected, restored, added to or structurally altered until a permit therefor has been issued by the Construction Official. All applications for such permits shall be in accordance with the requirements of the New Jersey State Uniform Construction Code. No building permit shall be issued unless the applicant shall have first secured a zoning permit.
D.
Certificate of occupancy.
(1)
Zoning permit required. No certificate of occupancy shall be issued for the use of any building, structure or land unless a zoning permit shall have first been issued for the use of such building, structure or land.
(2)
New uses. No building, structure or land shall be occupied or used until such time as a certificate of occupancy is issued by the Construction Official. Such certificates shall be issued upon application by the owner, prospective occupant or purchaser only after the Construction Official determines that the facts represented on the application are correct and that the building, structure or use is in conformance with the provisions of the Uniform Construction Code and other codes and ordinances affecting construction and occupancy. A temporary certificate of occupancy may be issued pursuant to the provisions of this chapter for any structure or use for which site plan approval has been secured but not all conditions of approval have been complied with.
(3)
Existing uses at the time of passage of this chapter. Upon written request from the owner, tenant, occupant or purchaser under contract, the Construction Official, after inspection, shall issue an occupancy permit for a use legally existing at the time this chapter is made effective, certifying the extent and kind of use and whether any such existing use conforms to the provisions of this chapter.
(4)
Change of use. Whenever there occurs a change in the occupancy or use (as herein defined) of a nonresidential building, structure or land, a new certificate of occupancy shall be applied for, to ensure compliance with all applicable codes and ordinances. The Construction Official may issue such certificate if the administrative officer determines that such change in occupancy or use is not a change in use as herein defined and determines, therefore, that a zoning permit is not required, provided that the applicant has met the requirements of the applicable regulations.
(5)
Scope of certificate of occupancy. The certificate of occupancy shall contain sufficient information as to the extent and kind of use or uses, such that any future investigation of the premises would disclose the extent to which a use was altered. It shall also indicate whether such use is a permitted or nonconforming use and the extent to which the use does not conform to the provisions of this chapter.
(6)
Improvement required. No permanent certificate of occupancy shall be issued until all required improvements have been installed in accordance with the provisions of this chapter. A temporary certificate of occupancy may be issued to permit occupancy for a period not to exceed one year. If, at the end of that period, the required improvements have not been completed, the occupancy permit becomes null and void, and the owner may be subject to the penalties herein defined by this chapter.
E.
Soil erosion and sediment control plan certification. Where required, a soil erosion and sediment control plan certification shall be obtained from the Freehold Area Soil Conservation District prior to subdivision or the erection of any structure or the alteration of the existing grade on any lot. No such certification shall be valid until a zoning permit shall have first been issued for the subdivision, building, structure or use.
§ 94-3.5 Records.
[Amended 12-13-1993 by Ord. No. 670; 8-18-2003 by Ord. No. 811; 12-7-2020 by Ord. No. 2020-1077]
A.
It shall be the duty of the Zoning Officer to keep a record of all applications, all actions of the municipal agencies, all complaints, all violations noted and a record of any action taken thereon, and all zoning permits issued, together with a notation of all special conditions involved. He shall file and safely keep all copies of all plans submitted, and the same shall form a part of the records of his office and shall be available for the use of the Borough Council and of other officials of the Borough.
B.
The Zoning Officer shall prepare a monthly report for the Borough, summarizing for a period since the last previous report all zoning permits issued and all complaints of violations and the action taken consequent thereon. A copy of each such report shall be filed with the Borough Clerk, Tax Assessor, Land Use Board, Code Enforcement Officer, Construction Official and Engineer at the same time it is filed with the Borough Council.
§ 94-3.6 Enforcement officials.
[Amended 11-14-1988 by Ord. No. 585]
A.
The duty of administering and enforcing the provisions of this chapter is hereby conferred upon the administrative officer (Zoning Officer), who shall have such powers as are conferred by this chapter and as reasonably may be implied. The administrative officer (Zoning Officer) shall be appointed by the Mayor, with the advice and consent of the Borough Council. In no case shall a zoning permit be granted for a subdivision or the construction of or alteration of any building or site where the proposed construction, alteration or use thereof would be in violation of any provisions of this chapter. It shall be the duty of the administrative officer (Zoning Officer) to cause any building, plans or premises to be inspected or examined and to order, in writing, the remedying of any conditions found to exist in violation of this chapter, and the officer shall have the right to enter any buildings or premises during the daytime or other normal business hours of the premises in the course of performing these duties.
[Amended 7-11-1994 by Ord. No. 696; 8-18-2003 by Ord. No. 811]
B.
The duty of enforcing the provisions of this chapter is also hereby conferred upon the Code Enforcement Officer, who shall have such powers as are conferred by this chapter and as reasonably may be implied. It shall be the duty of the Code Enforcement Officer to cause any building or premises to be inspected or examined and to order, in writing, the remedying of any conditions found to exist in violation of this chapter, and the Code Enforcement Officer shall have the right to enter any building or premises during the daytime or other normal business hours of the premises in the course of performing these duties.
§ 94-3.7 Interpretation.
In the application and interpretation of this chapter, all provisions hereof shall be held to be minimum standards or requirements adopted for the promotion of the public health, safety, convenience and general welfare of the Borough. Whenever the requirements of this chapter are at variance with the requirements of any other lawfully adopted rules, regulations or ordinances, the most restrictive or those imposing the higher standard shall govern.
§ 94-3.8 Repealer.
Chapters 81 and 94[1] of the Code of the Borough of Shrewsbury are hereby repealed in their entirety, and any portions of other ordinances which contain provisions inconsistent with this chapter are hereby repealed to the extent of such inconsistency, except as provided by § 94-5.1 and except that any building permit, variance, special use permit, occupancy permit or other permit validly issued pursuant to any such ordinance shall remain valid and effective and shall continue to be governed by the terms and conditions of such ordinance.
§ 94-3.9 Violations and penalties.
A.
For any and every violation of the provisions of this chapter, the applicant, subdivider, developer, owner, general agent or contractor of a building or premises where such violation has been committed or shall exist and the lessee or tenant of an entire building or entire premises where such violations have been committed or shall exist and the owner, general agency, contractor, lessee or tenant of any part of a building or premises in which part such violation has been committed or shall exist and the general agent, architect, building contractor or any other person who commits, takes part or assists in such violation or who maintains any building or premises in which any such violation shall exist shall, for each and every day that such violation shall exist and for each and every day that such violation continues, be subject to a maximum of $2,000 fine, 90 days' imprisonment and/or 90 days of community service.
[Amended 10-5-2020 by Ord. No. 1076]
B.
Subdivision of land.
(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 municipal approval is required by this chapter pursuant to N.J.S.A. 40:55D-1 et seq., such person shall be subject to a penalty not to exceed $1,000, and 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 developer or his assigns or successors to secure the return of any deposits made or purchase price paid and, also, a reasonable search fee, survey expense and title closing expense, if any. Any such action must be brought within two years after the date of the recording of the instrument of transfer, sale or conveyance of said land or within six years, if unrecorded.
C.
If, after final approval, it is discovered that there was any misrepresentation of any statements or proofs contained in any plat or in any application for approval or in any representations made to induce approval, the municipal agency or the Borough Council may, in addition to such other sanctions as are available in the law, revoke the approval of any plat and proceed as if final approval had not been obtained.
D.
If the developer or agent of the developer shall, after notification by certified mail from the Borough Engineer to cease the construction of improvements, cease the use of certain construction methods and procedures or cease the use of or lack of use of site maintenance methods and procedures which may result in hazards to life, health or property or continue to carry on the activities specifically included in cessation order(s) from the Borough Engineer, then any such developer or agent of such developer shall be subject to a fine not to exceed $2,000 or to imprisonment for not more than 90 days or to community service for not more than 90 days, or any combination thereof. Each and every day that a developer or agent of a developer operates in violation of this chapter after issuance of a cessation order by the Borough Engineer shall be considered a separate and specific violation.
[Amended 10-5-2020 by Ord. No. 1076]
§ 94-3.10 Amendments.
[Amended 12-13-1993 by Ord. No. 670]
A.
All amendments to this chapter and to the Zoning Map and Schedule, which form a part hereof,[1] shall be adopted in accordance with the provisions of N.J.S.A. 40:55D-1 et seq., as amended and supplemented. The map and schedule of area, yard and building requirements may be amended and supplemented by description and reference thereto, without reproduction of the entire Zoning Map or detailed text of the schedule.
[1]
Editor's Note: The Zoning Map and Schedule of Zoning District Regulations are included as attachments to this chapter.
B.
A protest against any proposed amendment or revision of a zoning ordinance may be filed with the Borough Clerk, signed by the owners of 20% or more of the area either of the lots or land included in such proposed change, or of the lots or land extending 200 feet in all directions therefrom inclusive of street space, whether within or without the Borough. Such amendment or revision shall not become effective following the filing of such protest except by the favorable vote of 2/3 of all the members of the Borough Council.
§ 94-3.11 Severability.
If any section, paragraph, subdivision, clause or provision of this chapter shall be adjudged invalid, such adjudication shall apply only to the section, paragraph, subdivision, clause or provision so adjudged, and the remainder of this chapter shall be deemed valid and effective.
§ 94-3.12 Effect on pending and new applications.
A.
After the effective date of the ordinance adopting this chapter, all new applications for development shall be subject to the provisions of this chapter. Within 45 days of submission of any application for development, the administrative officer shall notify the developer in writing if an application for development is found to be incomplete, or it shall be deemed to be properly submitted and constitute a complete application 45 days after the submission. If a developer is notified that an application for development is incomplete, the administrative officer shall further notify the developer within 45 days of submission of all the additional plans and supporting documentation requested if an application for development is still found to be incomplete, or it shall be deemed to be properly submitted and constitute a complete application 45 days after submission of all the additional plans and supporting documentation requested.
B.
All applications for development filed prior to the effective date of this chapter may be continued, subject to the following;
(1)
The time limits for approval by the municipal agency set forth within this chapter shall not apply unless the developer shall notify the municipal agency, in writing, that he desires the application to be considered within such time limits. Such letter of notification from the developer shall constitute the filing of a new application for development subject to the provisions of Subsection A of this section and all other provisions of this chapter.
(2)
If the developer does not notify the municipal agency that he desires the application for development to be considered within the time limits set forth in this chapter, such application for development shall be processed and acted upon pursuant to the procedures heretofore in effect at the time of such application.
(3)
All approvals granted after the effective date of this chapter shall confer upon the applicant all the rights set forth in this chapter.
§ 94-3.13 Filing of regulations with county.
Upon adoption of this chapter or other development regulations, except for an Official Map, and any amendments thereto, the Borough Clerk shall file a copy of this chapter and any amendments thereto with the Monmouth County Planning Board as required by N.J.S.A. 40:55D-16. Development regulations, except for an Official Map, shall not take effect until a copy thereof shall be filed with the Monmouth County Planning Board. A land use and development (zoning) ordinance or amendment or revision thereto which, in whole or in part, is inconsistent with or not designed to effectuate the land use plan element of the Borough Master Plan shall not take effect until a copy of the resolution required by N.J.S.A. 40:55D-62 shall be filed with the Monmouth County Planning Board. An Official Map shall not take effect until filed with the County Recording Officer. Copies of all development regulations and any revisions or amendments thereto shall be filed and maintained in the office of the Borough Clerk.
§ 94-3.14 Fees.
[Amended 7-8-1991 by Ord. No. 626; 12-13-1993 by Ord. No. 670; 7-11-1994 by Ord. No. 697; 7-15-1995 by Ord. No. 707; 11-13-1995 by Ord. No. 708; 8-18-2003 by Ord. No. 811; 6-2-2008 by Ord. No. 913; 10-5-2020 by Ord. No. 1076; 12-7-2020 by Ord. No. 2020-1077]
A. APPLICANT APPLICATION FOR DEVELOPMENT CERTIFICATE OF APPROPRIATENESS DEVELOPER DEVELOPMENT DEVELOPMENT, PLANNED ESCROW ESCROW ACCOUNT FEES MLUL SITE PLAN(1) (2) (3) SITE PLAN, MAJOR SITE PLAN, MINOR(1) (2) (3) SUBDIVISION SUBDIVISION, MAJOR SUBDIVISION, MINOR VARIANCE ZONING LETTER ZONING PERMIT(1) (2)
Definitions. As used in this chapter, the following terms shall have the meanings indicated: [NOTE: The parentheses following a definition indicate the source of the definition.]
A developer submitting an application for development or a permit required in accordance with this chapter. (§ 94-2.3)
The application form and all accompanying documents required by this chapter for approval of a subdivision plat, site plat, site plan, planned development, conditional use, zoning variance, or direction of the issuance of a permit pursuant to N.J.S.A. 40:55D-34 or 40:55D-36 (MLUL). (§ 94-2.3)
A document issued by the Land Use Board demonstrating its review of any alteration or addition to a designated historic site, or to a property within the Historic District. (§ 94-2.3)
The legal or beneficial owner or owners of a lot or any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land. (§ 94-2.3)
For the purpose of this chapter and article, the division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alterations, relocation, or enlargement of any building or structure for which permission may be required pursuant to N.J.S.A. 40:55D-1 et seq. (MLUL). (§ 94-2.3)
Unit development, planned unit residential development, residential cluster, planned commercial developments, or planned industrial development. (RSIS)
A deed, bond, money, or piece of property delivered to the Chief Financial Officer of the Borough, to be delivered by him to the grantee only upon fulfillment of a condition. (§ 94-2.3)
Any fees deposited by an applicant to pay for the municipally incurred expenses in the review of an application or inspection of a property under development, and the accounting entries used to keep track of expenditures. (§ 94-2.3)
Fees to be charged an applicant for review of an application for development by a municipal agency in accordance with this chapter and pursuant to the MLUL, N.J.S.A. 40:55D-8.
Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
A development plan of one or more lots on which is shown:
The existing and proposed conditions of the lot, including, but not limited to, topography, vegetation, drainage, floodplains, marshes, and waterways;
The location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress, drainage facilities, utility services, landscaping, structures and signs, lighting, and screening devices; and
Any other information that may be reasonably required in order to make an informed determination pursuant to the ordinance requiring review and approval of site plans by the Land Use Board adopted pursuant to MLUL Article 6.
Any site plan not classified as a minor site plan. (RSIS)
A development plan of one or more lots which:
Proposes the development within the scope of development specifically permitted by this chapter as a minor site plan;
Does not involve planned development, any new street or extension of any off-tract improvement which is to be prorated pursuant to the MLUL, N.J.S.A. 40:55D-42; and
Contains the information reasonably required in order to make an informed determination as to whether the requirements established by ordinance for approval of a minor site plan have been met. (MLUL)
The division of a lot, tract, or parcel of land into two or more lots, tracts, parcels, or other divisions of land for sale or development. The following shall not be considered subdivisions within the meaning of these rules if no streets are created: divisions of property by testamentary or intestate provisions; divisions of property upon court order, including, but not limited to, judgments of foreclosure; consolidation of lots by deed or other recorded instrument of one or more adjoining lots, tracts, or parcels of land owned by the same person or persons, all of which are found and certified by the administrative officer to conform to the requirements of the municipal development rules and are shown and designated as separate lots, tracts, or parcels on the Official Tax Map of the Borough. The term "subdivision" shall also include the term "resubdivision." (§ 94-2.3)
Any subdivision not classified as a minor subdivision. (§ 94-2.3)
A subdivision of land for the creation of a number of lots specifically permitted by ordinance as a minor subdivision; provided that such subdivision does not involve:
Permission to depart from the literal requirements of zoning regulations of this chapter pursuant to N.J.S.A. 40:55D-40b, 40:55D-70c and 40:55D-70d (MLUL). (§ 94-8.2-3)
A document signed by the Zoning Officer prepared in response to requests from homeowners, business owners, prospective purchasers, attorneys, mortgage lenders, banks, etc., for zoning information related to property, e.g., zone designation, zoning district regulations, permitted uses, and existing zoning violations.
A document signed by the Zoning Officer:
Which is required by ordinance as a condition precedent to the commencement of a use or the erection, construction, reconstruction, alteration, or conversion of a structure or building; and
Which acknowledges that such use, structure or building complies with the provisions of the Municipal Zoning Ordinance or variance therefrom duly authorized by a municipal agency pursuant to the MLUL, N.J.S.A. 40:55D-60 and 40:55D-70. (§ 94-2.3)
B.
Policy. A copy of the Fee Ordinance, § 94-3.14, shall be furnished to any person upon request and payment of a fee(s) in accordance with the provisions of Subsection P, Document charges and reproduction fees. Exemption: Pursuant to the MLUL, N.J.S.A. 40:55D-8, a Board of Education shall be exempted from the payment of any fee charged.
C.
Application filing fees. Fees for documents signed by the Zoning Officer, applications or for the rendering of any services by the Land Use Board shall be as provided in Chapter 94, § 94-3.4. An applicant shall, at the time of filing an application for development, as defined above in Subsection A, pay a nonrefundable fee to the Borough of Shrewsbury by cash, certified check or bank draft. Failure to submit payment or the submission of checks that are found to be improperly drawn will cause an application to be deemed incomplete and a hearing on the application to be delayed. The fee to be paid shall be the sum of the fees for the component elements of the plat or plan. Proposals requiring a combination of approvals, such as subdivision, site plan and/or variances, shall pay a fee equal to the sum of the fee for each element. These fees are in addition to escrow fees required in Chapter 94, § 94-3.15, Deposits and escrows.
E.
Fees for application for developments and other requests for approval by the Land Use Board shall be as follows:
(1)
Informal reviews: $290. (NOTE: Such fees to be a credit toward the fee for any future applications for the same development proposal filed within one year of the date of the informal review.)
(2)
Application for certificate of appropriateness: $200. (NOTE: Such fee to be a credit toward the fees for review of the application, issuance of a certificate of appropriateness and for the preparation of a resolution memorializing the findings of fact and conclusion of the Land Use Board.) (MLUL, N.J.S.A. 40:55D-10).
(4)
Site plans.
(a)
Minor site plan application fee: $575.
(b)
Major site plan:
[1]
Preliminary minimum:
[a]
Application fee: $860, plus:
[i]
For each dwelling unit: $60 per unit.
[ii]
Nonresidential: $1,150 plus total of applicable components:
[A]
For each 1,000 square feet of affected lot area:
First 50,000 square feet: $6 per 1,000 square feet.
Over 50,000 square feet: $3 per 1,000 square feet.
[B]
For each full 1,000 square feet of proposed new gross floor area:
First 50,000 square feet: $30 per 1,000 square feet.
Over 50,000 square feet: $12 per 1,000 square feet.
[C]
For each proposed new or additional parking space:
First 100 spaces: $20 per space.
Over 101 spaces: $6 per space.
[D]
For each 1,000 square feet of remodeled existing floor area: $10 per 1,000 square feet.
[E]
For each reconstructed, resurfaced or improved existing paved parking space: $6 per space.
[F]
For each proposed freestanding sign: $6.
[2]
Final approval for all uses: 50% of the fee for preliminary approval as noted above.
F.
Revised plats and site plans previously approved. Any proposed revisions to a plat or site plan, including all supporting maps and documents, previously approved by the Land Use Board, which approval is still in effect, shall require submission of a revised plat and payment of fees in accordance with the following provisions:
(1)
Any proposed revisions to a previously approved plat or site plan where there are minor changes in the plat proposed by the applicant or required by another government agency, where approval was a condition of the Land Use Board approval, which do not involve any additional building or parking or a significant change in the design of the site or subdivision, an application fee shall be required:
(a)
Application fee: $250, along with sufficient copies of the plat incorporating the changes as may be necessary for distribution.
(2)
Where there are changes in the plat proposed by the applicant or required by another governmental agency, where approval was a condition of the Land Use Board approval, which involve additional building or parking or a significant change in the design of the subdivision:
(a)
An application fee shall be equal to 1/2 the fee for the initial submission, along with sufficient copies of the plat incorporating the changes as may be necessary for distribution.
(3)
Where the proposed changes involve a change in use and/or major alteration of the design concepts of the plat approval by the Land Use Board, it shall be considered a new application and shall require the full payment of fees set forth in this section for new applications for development.
(4)
Where revisions in the plat only involve additional information required as a condition of a previous approval, no additional fees shall be required.
G.
H.
Conditional uses: $860, plus fees for site plan, variances or other fees listed above.
I.
General development plan (GDP): $1,725.
J.
Special meeting at applicant's request.
(1)
Fees to be paid within seven days of receipt of notice of appeal meeting date: $1,725.
N.
Inspection fees.
(1)
The developer shall reimburse the Borough for all reasonable fees paid to the Borough Engineer for the inspection of improvements for major site plans and subdivisions. The developer shall deposit such fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements as estimated by the Borough Engineer based on documented construction costs for public improvements prevailing in the general area of the Borough.
(2)
For those developments for which the inspection fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall deposit the remaining 50% of the inspection fee.
(3)
For those developers for which the inspection fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.
(4)
The Borough Engineer shall not perform any inspection if sufficient funds to pay for these inspections are not on deposit.
O.
Tax Map revisions. Fees for Tax Map revision, where applicable, shall be placed in the Borough Fund for Tax Map revisions to offset the cost of revisions.
(1)
The applicant shall provide for a complete set of reproducible (Mylar) copies of the approved plans and maps or maps filed with the Monmouth County Clerk's office.
(2)
The applicant shall provide a computer disc (CD) of all mapped subdivisions in an electronic format, such as AutoCAD® or geographic information system (GIS) shape file. (The actual cost for Tax Map revisions may be reduced if the applicant's engineer furnishes a data disc of the filed subdivision that is compatible with the Borough Engineer's computer system.)
P.
Document charges and reproduction fees.
(1)
N.J.S.A. 47:1A-1 et seq., the Open Public Records Act (OPRA).
(a)
In compliance with OPRA, government records shall be made accessible for copying, with certain statutory exceptions. A request must be made in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the Borough Clerk, the designated custodian of public records.
(b)
The custodian shall fulfill a request as soon as possible but not later than seven business days after the request is received, provided that the record is currently available and not in storage or archived. If the government record is in storage or archived, the custodian shall so advise the requester when the record will be made available.
(c)
Whenever the in-house municipal work force or available municipal equipment is insufficient to duplicate or produce government records in a timely fashion, the custodian may cause such duplication or production to be accomplished by the Borough Engineer or Borough Planning Director or outside vendors, such as copy centers or producers of engineer digital images, or to be accomplished by other professionals. If the costs of such duplication or production charged by such offices/vendors exceeds charges set forth in N.J.S.A. 47:1A-5 (OPRA), the actual cost of same, without any additional surcharge for labor costs, shall be paid.
(d)
Deposit/prepayment. A deposit shall be paid prior to filing where it is estimated that the information requested will cost in excess of $5 to reproduce. Prepayment is required when the request is voluminous, unusual or requires the use of a vendor or services of a professional.
(e)
Supplemental charges. Cost of any travel necessitated for the reproduction of records shall be added for any and all records. Any postage or shipping charges shall be added for any and all records to be sent by mail or delivery service, if so requested.
(f)
If the custodian is unable to comply with a request for access, the custodian shall indicate the specific reason for denying access on the request form and promptly return a copy to the requester.
(2)
Fee schedule for reproductions and documents:
(a)
The fees of N.J.S.A. 47:1A-5 (OPRA) are hereby incorporated herein as such fee schedule presently exists or as such fees might appear in future modifications or amendments of the statute for copies of standard-sized paper documents up to 8 1/2 inches by 14 inches in size:
(c)
Large-sized documents and maps:
[1]
Fee for photocopy of a black-and-white document, 11 inches by 17 inches in size: $1.50 per page.
(d)
Preprinted documents.
[1]
Fees for printed books, manuals, periodicals, pamphlets, supplements, and/or binders in hard or soft cover or spiral-bound shall be based on the actual cost charged to the Borough of Shrewsbury.
[2]
Preprinted documents include, but are not limited to: Shrewsbury Administrative Code Books (General Legislation, Zoning and Land Development), Master Plan, Environmental Resource Inventory and/or printed pamphlets or supplements derived from same.
(e)
Record of Borough meeting: $75 per meeting.
(f)
Copy of electronic documents or database. The following fees cover the cost of copying existing files to a floppy disk or CD-ROM sent via email. Any requests for software conversions shall be subject to the special service charge described below. For security reasons, the use of floppy disks or CD-ROMs provided by the provider is prohibited.
(g)
Cost of reproductions of GIS data. Topographic price list (based on 100 scale) of any GIS data owned by the Borough of Shrewsbury shall be as follows:
(h)
Conversion of paper text to electronic form: $5 per page plus service charge.
(i)
Special service charges.
[1]
A special service charge shall be imposed, in addition to the actual cost of duplicating the record, where the nature, format, manner of collation or volume of printed matter is such that it cannot be reproduced by ordinary copying equipment in ordinary business size or where such record involves an extraordinary expenditure of time and effort to accommodate the request. The requestor shall have the opportunity to review and object to the special charge prior to it being incurred.
[2]
The actual cost (materials and supplies) of duplication or reproduction, plus a special service charge of $35 per hour or the actual direct cost of labor (if more), shall be imposed for each hour of extraordinary time predicted to be utilized to respond to the request.
§ 94-3.15 Deposits and escrows.
[Added 8-18-2003 by Ord. No. 811; amended 12-7-2020 by Ord. No. 2020-1077]
Payments to professionals for review of subdivision, site plan and variance applications before the Land Use Board.
A. IN-HOUSE PROFESSIONALS OUTSIDE PROFESSIONALS PROFESSIONAL SERVICES(1) (2) (3) (4) (5) (6)
Definitions. As used in this chapter, the following terms shall have the meanings indicated:
Engineers, planners, attorneys and other professionals whose salary, staff support and overhead are provided by the Borough of Shrewsbury.
Engineers, planners, attorneys and other professionals whose salary, staff support, and overhead are not provided by the Borough of Shrewsbury. "Outside professionals" shall include, without limitation, consultants who are not normally utilized by the Borough of Shrewsbury or the reviewing board when an application presents issues which are beyond the scope of the expertise of the professionals who normally serve the reviewing board or Borough.
Time spent by a professional engineer, professional planner, attorney, traffic expert or other professional in connection with review of an application and/or review and preparation of documents in regard to such application. In appropriate cases, such services shall include, without limitation:
Review of plans, reports, relevant ordinance provisions, statutory law, case law, and prior approvals for the same parcel.
Issuance of reports setting forth recommendations resulting from the review of any documents submitted by the applicant.
Charges for any telephone conference or meeting requested by the applicant, his attorney or any of his experts.
Preparation for and attendance at special meetings.
Inspections.
Preparation of resolutions, developer's agreements, review or preparation of easements, deeds and/or other documents.
B.
Professional review costs. Professional review costs for the attorney, planner, engineer, or other professional or expert retained on behalf of the Borough of Shrewsbury for the purpose of review, analysis, inspection or preparation of documents shall be charged to and shall be paid by the applicant. The Shrewsbury Chief Financial Officer shall make all of the payments to professionals for services rendered to the Borough or approving authority for review of applications for development, review and preparation of documents, inspections or other purposes under the provision of N.J.S.A. 40:55D-1 et seq. Such fees or charges shall be based upon the schedule of fees herein.
(1)
Components of fees.
(a)
Each applicant shall pay to the Borough of Shrewsbury a review fee in connection with:
[1]
Each application for development;
[2]
Each application for amendment to or extension of any development approval;
[3]
Any request for a zoning change or recommendation of a zone change;
[4]
Any request for amendment of the Master Plan; and/or
[5]
Any request for concept review of a development approval.
(b)
The review fee shall be equal to the sum of the following two components:
[1]
The dollar amount of all charges by outside professionals (as defined herein) for professional services rendered to the Borough and/or the reviewing board in connection with the application, plus all actual out-of-pocket disbursements incurred in regard to such services. All charges for services by each outside professional shall be billed at the same rate as all other work of the same nature performed by such professional for the Borough when fees are not reimbursed or otherwise imposed on the applicant. Charges for professional services of outside professionals shall be based upon a schedule of fees established by resolution of the Borough Council, in the case of professionals retained by the Borough. Such schedules shall be subject to revision from time to time in the discretion of the Borough Council; and
[2]
The dollar amount of the hourly base salary of each in-house professional (as defined herein), who has rendered professional services to the Borough and/or the reviewing board in connection with the application, which shall not exceed 200% of the sum of the products resulting from multiplying: a) the hourly base salary, which shall be established annually by ordinance of each of the professionals, by b) the number of hours spent by the respective professionals upon review of the application for development or inspection of the developer's improvements, as the case may be.
(2)
Limitations on scope of charges for professional services.
(a)
All charges for professional services shall be reasonable and necessary given the status and progress of the application. Such charges shall be made only in connection with:
(b)
A professional shall not review items which are subject to approval by a state governmental agency and which are not under municipal jurisdiction, except to the extent that consultation with a state agency is necessary due to the effect of a state approval on the applicant's application.
(c)
If the Borough or the reviewing board shall retain a different professional in place of the professional originally responsible for review of an application, the Borough or the reviewing board, as the case may be, shall be responsible for all time and expenses of the new professional to become familiar with the application. Neither the Borough nor the reviewing board shall charge the applicant or the applicant's escrow account for such services.
(d)
Neither the Borough nor reviewing board shall bill an applicant, or charge the applicant's escrow account, for any municipal clerical or administrative functions, overhead expenses, meeting room charges or other municipal costs and expenses, except as provided for in this subsection, nor shall any professional add any such charges to his bill.
(3)
Payment of escrow fees; payments to professionals for review of subdivision, site plan and variance applications for review with the Land Use Board. At the time of filing an application, the applicant shall pay the deposit in accordance to the following schedule:
(b)
(c)
Site plan.
[2]
Major site plan.
[a]
Preliminary site plan:
[i]
Nonresidential:
Proposed Building Area (square feet) | Amount |
|---|---|
Up to 5,000 | $5,000 |
5,001 to 10,000 | $9,000 |
10,001 to 17,000 | $13,900 |
17,001 to 25,000 | $18,700 |
25,001 to 50,000 | $26,200 |
50,001 to 100,000 | $33,700 |
For every square foot over 100,000 | Add $0.10 per square foot |
[ii]
Residential.
Number of Units | Amount |
|---|---|
First 10 | $300 per unit |
Next 40 | $200 per unit |
Next 50 | $100 per unit |
Every unit over 100 | $50 per unit |
[iii]
When no building improvements are proposed, the required escrow fee per square foot of proposed lot improvements shall be $1 per square foot.
[iv]
Health care/institutional: $150 per bed.
[b]
Final major site plat: 20% of preliminary fees.
(4)
Custody of deposits; procedure for payments against deposits; submission of vouchers; monthly statements.
(a)
Custody of deposits. All review fee deposits shall be placed into an escrow account, which account shall be maintained by the Chief Financial Officer of the Borough of Shrewsbury. The Chief Financial Officer shall make all payments from the escrow account.
(b)
Procedure for payments. All payments charged to an applicant's escrow account shall be pursuant to vouchers from the professionals performing professional services in connection with the application. All vouchers shall identify the professional performing the services, the dates when services were performed, the hours spent to one-quarter-hour increments, the hourly rate, and the expense incurred.
(c)
Submission of vouchers. All outside professionals shall submit vouchers to the Chief Financial Officer on a monthly basis. A copy of the vouchers shall be sent to the applicant simultaneously. All in-house professionals shall submit to the Chief Financial Officer on a monthly basis a statement containing the same information as the voucher of an outside professional. A copy of the statement shall be sent to the applicant simultaneously.
(d)
Monthly statements. The Chief Financial Officer shall prepare and send to the applicant on a monthly basis a statement providing an accounting of the applicant's escrow account. The accounting shall include all deposits made, interest earned, disbursements made, and cumulative deposit balance. Notwithstanding the foregoing, if monthly charges to an applicant's deposit are $1,000 or less, such statement may be provided by the Chief Financial Officer on a quarterly basis.
(5)
Replenishing of deposits.
(a)
The determination of insufficiency shall be made by the Chief Financial Officer based on the remaining work. Furthermore, as used herein, a "reasonable time period" for the posting of additional funds to the escrow account shall be not longer than 15 days after the date of the Chief Financial Officer's insufficiency notice. The applicant shall be deemed to agree to the terms of the insufficiency notice unless, within 15 days after the date of such notice, the applicant shall deliver to the Chief Financial Officer a written notice of objection.
(b)
If the applicant timely files such an objection, the applicant shall have the right to pay the amount requested under protest and the right to challenge same in the Superior Court, Law Division, in an action in lieu of prerogative writs filed within 45 days after the applicant's receipt of the Chief Financial Officer's final accounting with respect to the applicant's technical review fee deposit.
(c)
If the applicant fails to timely pay (under protest or otherwise) the amount requested, the Borough, the reviewing board, and all professionals shall have the right to cease further work on the application immediately, and the reviewing board shall have the right to deny without prejudice any pending application, because of the applicant's failure to post additional escrow fees needed for the proper review of such application. In no event shall any approved plans be signed or delivered to the applicant, nor shall any construction permits, certificates of occupancy, or other approvals or authorizations be issued to an applicant, when there exists any deficiency in the applicant's escrow account.
(6)
Escrow closeout procedures; escrow account interest.
(a)
Escrow closeout procedures.
[1]
The following closeout procedure shall apply to all deposits and escrow accounts established under the provisions of N.J.S.A. 40:55D-1 et seq. and shall commence after the approving authority has granted final approval and signed the subdivision plat or site plan in the case of application review escrows and deposits, or after the improvements have been approved as provided in N.J.S.A. 40:55D-53 in the case of improvement inspection escrows and deposits.
[2]
The applicant shall send written notice by certified mail to the Chief Financial Officer of the Borough and the approving authority, and to the relevant Borough professional, that the application or improvements, as the case may be, are completed. After receipt of such notice, the professional shall render a final bill to the Chief Financial Officer within 30 days and shall send a copy simultaneously to the applicant.
[3]
The Chief Financial Officer shall render a written accounting to the applicant on the uses to which the deposit was put within 45 days of receipt of the final bill. Any balances remaining in the deposit or escrow account, including interest in accordance with N.J.S.A. 40:55D-53.1, shall be refunded to the developer along with the final accounting.
(b)
Escrow account interest.
[1]
Whenever an amount of money in excess of $5,000 shall be deposited by the applicant with the Borough for professional fees, for inspection fees, or to satisfy the requirement for a performance guaranty or the requirement for any maintenance guaranty pursuant to this chapter, such money, until repaid, or applied for the purposes for which it was deposited, including the applicant's portion of the interest earned thereon, shall continue to be the property of the applicant and shall be held by the Borough, except as otherwise provided in this section.
[2]
The Borough shall deposit such money in a banking institution or savings and loan association located in the State of New Jersey and insured by an agency of the federal government or in any other fund or depository approved for such deposits by the State of New Jersey. Such monies shall be maintained in an account bearing interest at the minimum rate currently paid by such depository on a time or savings account.
[3]
The Borough shall notify the applicant in writing of the name and address of the institution or depository in which such deposit is made and the amount of the deposit. The Borough shall not be required to refund an amount of interest paid on a deposit that does not exceed $100 for any year; that entire amount shall belong to the applicant and shall be refunded to the applicant by the Borough annually, or at the time the deposit is repaid or applied to the purposes for which it was deposited, as the case may be. Notwithstanding anything to the contrary above, the Borough may retain for administrative expenses a sum equal to 33 1/3% of the annual interest earned by such deposit. The amount so retained shall be in lieu of all other administrative and custodial expenses charged.
(7)
Applicant notification on dispute of escrow charges; appeals: rules and regulations.
(a)
Applicant notification.
[1]
An applicant shall notify the Borough Council in writing, with copies to the Chief Financial Officer, the approving authority and the professional, whenever an applicant disputes the charges made by a professional for service rendered to the Borough in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to N.J.S.A. 40:55D-1 et seq. The Borough Council, or its designee, shall, within a reasonable time period, attempt to remedy any disputed charges.
[2]
If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals established under N.J.S.A. 40:55D-53.4. An applicant or his authorized agent shall submit the appeal in writing to the Monmouth County Construction Board of Appeals. The applicant or his authorized agent shall simultaneously send a copy to the Borough approving authority and any professional whose charge is the subject of the appeal.
[3]
An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by N.J.S.A. 40:55D-53.2. An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An application making use of this provision need not appeal each charge individually.
(b)
Appeals: rules and regulations.
[1]
During the pendency of any appeal, the Borough or approving authority shall continue to process, hear and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance or maintenance guarantees, the issuance of construction permits or certificates of occupancy, or any approval or permit because of an appeal that has been filed or is pending under this section.
[2]
The Chief Financial Officer of the Borough may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment, the Chief Financial Officer of the Borough shall reimburse the deposit or escrow account in the amount of any disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment to a professional or consultant who is not an employee of the Borough, the professional or consultant shall reimburse the Borough in the amount of any such disallowed charges.