Somerville City Zoning Code
ARTICLE IV
HEARINGS
§ 102-9 When Required.
Public hearings shall be required for the following:
A.
The Planning Board or Zoning Board of Adjustment, as applicable, shall hold a hearing on each application for development, except that a minor site plan may, at the discretion of the Board, be approved subject to favorable recommendation by the Site Plan Waiver Committee and/or Architectural Review Board; provided, that any minor site plan which requires any variances or exceptions shall be reviewed by the full Board, and a public hearing shall be held in accordance with the procedures set forth in this chapter.
B.
The Planning Board shall hold a hearing on any adoption, revision or amendment of the Master Plan.
C.
The Planning Board or Borough Council, as applicable, shall hold a hearing on any adoption, revision or amendment of the capital improvement program.
D.
The Zoning Board of Adjustment shall hold a hearing on appeal from the action of the Construction Official or Zoning Officer concerning the zoning regulations, or other administrative appeal within its jurisdiction.
E.
The Zoning Board of Adjustment shall hold a hearing on every request for an interpretation of the zoning regulations or request pertaining to a special question within the Board's jurisdiction.
F.
The Borough Council shall hold a hearing on any adoption, revision or amendment of this chapter or any other development regulation.
G.
The Borough Council shall hold a hearing on appeal from the action of the Zoning Board of Adjustment approving an application for development involving a "D" variance.
§ 102-10 Rules; Hearing Dates.
The agency holding the hearing shall make the rules governing such hearings. Upon the filing of an appeal or complete application, as applicable, the appropriate agency shall schedule a hearing date in accordance with its rules.
§ 102-11 Notice of Hearing; When Required.
Public notice as specified herein shall be given for all hearings involving the following:
A.
An application for development requesting to direct the issuance of a building permit for structures in the bed of a mapped street, public drainage way, flood control basin or reserved public area, pursuant to § 102-35.
B.
An application for development requesting to direct the issuance of a building permit for structures on a lot not related to a street, pursuant to § 102-36.
E.
Any application for development which involves a request for a variance.
F.
Any appeal to the Borough Council from the action of the Zoning Board of Adjustment approving an application for development involving a "D" variance, pursuant to § 102-39.
G.
An application for preliminary site plan approval, exclusive of a minor site plan.
H.
An application for preliminary major subdivision approval.
J.
An application to modify or eliminate a significant condition or conditions in a memorializing resolution in any situation wherein the application for development for which the memorializing resolution is proposed for adoption required public notice.
K.
The adoption, revision or amendment of the Master Plan.
L.
The adoption, revision or amendment of this chapter or any other development regulation.
M.
The adoption, revision or amendment of the capital improvement program.
N.
An application for certification of a nonconforming use or structure pursuant to § 102-121B(7).
[Added 06-16-03 by Ord. 2143]
§ 102-12 Notice of Hearings for Development Applications.
[Amended 06-16-03 by Ord. 2143]
The following provisions shall apply to public notice of hearings for development applications, including applications for certification of nonconforming uses or structures:
A.
Content. Public notice of hearings for development applications, including variance applications, shall state the following:
(1)
The date, time and place of the hearing, and which board is to hear the application.
(2)
The nature of the matters to be considered; provided that when conditional use approval, variance relief or the issuance of a permit pursuant to this chapter is requested, the notice shall include reference to the request for conditional use approval, variance or direction for issuance of a permit, as the case may be.
(3)
An 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.
(4)
The location and times at which any maps and documents for which approval is sought are available for inspection in the office of the Board Secretary.
B.
Service of notice; parties entitled to notice. Public notice shall be given by the applicant. Notice shall be given at least ten (10) days prior to the date of the hearing, except as may be required otherwise below. The date of the hearing shall not count as one of the ten (10) days. Public notice shall be given by publication in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough. Notice shall also be given to members of the public as follows:
(1)
Notice of hearing shall be given to the owners, as shown on the current tax duplicates, of all real property located within the State and within two hundred (200) feet in all directions of the property which is the subject of such hearing. This requirement shall be deemed satisfied by notice to the 1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or 2) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given as follows:
(a)
Notice shall be given by 1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his or her agent in charge of the property, or 2) mailing a copy thereof by certified mail to the property owner at his or her address as shown on the said current tax duplicate.
[Amended 12-17-01 by Ord. 2118]
(b)
Notice to a partnership owner may be made by service upon any partner.
(c)
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.
(d)
Notice to a condominium association, because of its ownership of common elements or areas located within two hundred (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.
(2)
Notice of hearings on applications for development involving property located within two hundred (200) feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality.
(3)
Notice of hearings on the following development applications, whether for informal review or preliminary approval, shall be submitted by certified mail, return receipt requested, to municipalities within the Regional Center after the application has been determined complete, but at least thirty (30) days prior to the public hearing for said applications. If after the initial public hearing the application is amended, notice shall again be provided in the same manner as with the original application, except that such notice shall only be required at least ten (10) days prior to the public hearing. Notice shall be sent to the Chairperson or Secretary of the Planning Board of the Township of Bridgewater and the Borough of Raritan, along with a complete set of plans and other application documents. A copy of the cover letter shall also be sent to the mayor, governing body and administrator of each of said municipalities. The following applications shall be subject to these notice requirements:
(a)
Developments proposing to construct more than fifty (50) new dwelling units (notice to both Bridgewater and Raritan).
(b)
Developments proposing to construct more than fifty thousand (50,000) square feet of floor area of nonresidential building(s) (notice to both Bridgewater and Raritan).
(c)
Any preliminary major subdivision or preliminary major site plan, the property of which is located within five hundred (500) feet of the municipal boundary with Bridgewater and/or Raritan (notice to Bridgewater and/or Raritan, depending upon which municipality is located within five hundred (500) feet).
(d)
Any preliminary major subdivision or preliminary major site plan, the property of which is located within five hundred (500) feet of a critical natural resource, based upon the judgment of the person designated to determine the completeness of the application. Examples of such resources include, but are not limited to, primary or secondary streams identified in the County Open Space Plan (notice to Bridgewater and/or Raritan, depending upon which municipality or municipalities have the potential to be affected by the proposed development in the judgment of the judgment of the person designated to determine the completeness of the application).
(4)
Notice shall be given by personal service or certified mail to the County Planning Board of hearings on applications for development involving 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 two hundred (200) feet of a municipal boundary.
(5)
Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development involving property adjacent to a State highway.
(6)
Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds one hundred fifty (150) acres or five hundred (500) dwelling units. The notice shall include a copy of any maps or documents required to be on file with the Board Secretary pursuant to the checklists contained in Article IX of this chapter.
(7)
Notice of hearings on an application for development involving a major subdivision or preliminary site plan, excluding minor site plans, shall be given to 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 the Municipal Land Use Law, by: 1) 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 2) mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.
C.
Request for certified list of property owners within 200 feet. Upon written request of an applicant, the Board Secretary shall request the Tax Assessor to make and certify, within seven (7) days, a list from the current tax duplicates of the names and addresses of owners to whom the applicant is required to give notice. In addition, the Tax Assessor shall include on the list the names, addresses and positions of those persons who, not less than seven (7) days prior to the date on which the applicant requested the list, have registered to receive notice as a public utility, cable television company or local utility. 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.
D.
Effect of mailing notice. Any notice made by certified mail as stipulated above shall be deemed complete upon mailing.
E.
Proof of service of notice. The applicant for development shall file an affidavit of proof of service with the Planning Board or the Zoning Board of Adjustment, as appropriate, prior to or on the date of the hearing for which notice is required.
§ 102-13 Notice of Hearings for the Master Plan.
The following provisions shall apply to public notice of hearings for adoption, revision or amendment of the Master Plan:
A.
Content. Public notice of hearings for adoption, revision or amendment of the Master Plan shall state the following:
B.
Service of notice; parties entitled to notice. Notice shall be given by the Planning Board at least ten (10) days prior to the date of the hearing, except as may be required otherwise below. The date of the hearing shall not count as one of the ten (10) days. Public notice shall be given by publication in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough. Notice shall also be given to the following parties as specified below:
(1)
Notice shall be given by personal service or certified mail to the clerk of an adjoining municipality of all hearings on adoption, revision or amendment of a master plan involving property situated within two hundred (200) feet of such adjoining municipality.
(2)
Notice shall be submitted by certified mail, return receipt requested, to municipalities within the Regional Center of all hearings on adoption, revision or amendment of a master plan at least forty-five (45) days prior to the public hearing for said actions. Notice shall be sent to the Chairperson or Secretary of the Planning Board of the Township of Bridgewater and the Borough of Raritan, along with the proposed plan documents. A copy of the notice letter shall also be sent to the mayor, governing body and administrator of each of said municipalities.
(3)
Notice shall be given by personal service or certified mail to the County Planning Board of all hearings on the adoption, revision or amendment of the Borough Master Plan. Such notice shall include a copy of any such proposed Master Plan, or any revision or amendment thereto.
(4)
Notice shall be given by personal service or certified mail to the County Planning Board of the adoption, revision or amendment of the Borough Master Plan. Such notice shall be given not more than thirty (30) days after the date of such adoption, revision or amendment and shall include a copy of the Master Plan, or revision or amendment thereto.
C.
Effect of mailing notice. Any notice made by certified mail as stipulated above shall be deemed complete upon mailing.
§ 102-14 Notice of Hearings for Development Regulations or Capital Improvement Program.
The following provisions shall apply to public notice of hearings for adoption, revision or amendment of this chapter, other development regulations or the capital improvement program:
A.
Content. Public notice of hearings for adoption, revision or amendment of this chapter, other development regulation, or the capital improvement program shall provide the following:
(1)
A statement of the date, time and place of the hearing.
(2)
A statement of the nature of the matters to be considered.
(3)
The location and times at which any maps and documents which are the subject of said adoption, revision or amendment are available for inspection in the office of the Borough Clerk.
(4)
In the case of zone district classification or boundary changes requiring special notice pursuant to § 102-14B(4), the notice shall also provide an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the Borough Tax Assessor's office.
(5)
In the case of notice to the County Planning Board, a copy of the proposed or adopted development regulation, official map, capital improvement program, or any proposed or adopted revision or amendment thereto, as the case may be, shall be included with the notice.
B.
Service of notice; parties entitled to notice. Notice shall be given by the Borough Clerk at least ten (10) days prior to the date of the hearing, except as may be required otherwise below. The date of the hearing shall not count as one of the ten (10) days. Notice shall be given as specified below:
(1)
Notice shall be given by personal service or certified mail to the County Planning Board of all hearings on the adoption, revision or amendment of any development regulation.
(2)
Notice shall be given by personal service or certified mail to the clerk of an adjoining municipality of all hearings on adoption, revision or amendment of any development regulation involving property situated within two hundred (200) feet of such adjoining municipality.
(3)
Notice shall be submitted by certified mail, return receipt requested, to municipalities within the Regional Center of all hearings on adoption, revision or amendment of the Borough's development regulations at least forty-five (45) days prior to the public hearing for said actions. Notice shall be sent to the Chairperson or Secretary of the Planning Board of the Township of Bridgewater and the Borough of Raritan, along with the proposed ordinance documents. A copy of the notice letter shall also be sent to the mayor, governing body and administrator of each of said municipalities.
(4)
Notice of a hearing on an amendment to the zoning regulations, Article XI of this chapter, which amendment proposes a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the Planning Board pursuant to N.J.S.A. 40:55D-89, shall be given to the owners of all real property as shown on the current tax duplicates, and located, in the case of a classification change, within the district and within the State within two hundred (200) feet in all directions of the boundaries of the district, and located in the case of a boundary change, in the State within two hundred (200) feet in all directions of the proposed new boundaries of the district which is the subject of the hearing. Service of notice shall be given in the following manner:
(a)
Notice shall be given by 1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his or her agent in charge of the property, or 2) mailing a copy thereof by certified mail and regular mail to the property owner at his or her address as shown on the said current tax duplicate.
[Amended 12-17-01 by Ord. 2118]
(b)
Notice to a partnership owner may be made by service upon any partner.
(c)
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.
(d)
Notice to a condominium association, horizontal property regime, community trust or homeowner's association, because of its ownership of common elements or areas located within two hundred (200) feet of the boundaries of the district which is the subject of the hearing, may be made in the same manner as to a corporation in addition to notice to unit owners, co-owners or homeowners on account of such common elements or areas.
(e)
The Borough Clerk shall execute affidavits of proof of service of the notices required herein for the hearings on zoning district classification or boundary changes, and shall keep the affidavits on file along with the proof of publication of the notice of the required public hearing on the proposed zoning ordinance change. Costs of the notice provision shall be the responsibility of the proponent of the amendment.
(5)
Notice shall be given by personal service or certified mail to the County Planning Board of the adoption, revision or amendment of the Borough capital improvement program or official map. Such notice shall be given not more than thirty (30) days after the date of such adoption, revision or amendment.
C.
Effect of mailing notice. Any notice made by certified mail as stipulated above shall be deemed complete upon mailing.
§ 102-15 Filing of Maps and Documents; Deadline.
Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least ten (10) days before the date of the hearing, during normal business hours in the office of the Board Secretary. The applicant may produce other documents, records, or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
§ 102-16 Witnesses; Evidence.
The following provisions shall govern the testimony of witnesses and production of evidence at hearings conducted pursuant to this chapter:
A.
The officer presiding at the hearing or such person as he or she may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties. The provisions of the "County and Municipal Investigations Law," P.L. 1953, c. 38 (C. 2A:67A-1 et seq.) shall apply.
[Amended 12-17-01 by Ord. 2118]
B.
The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer. The right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
C.
Technical rules of evidence shall not be applicable to the hearing, but the agency may exclude irrelevant, immaterial or unduly repetitious evidence.
§ 102-17 Voting Procedures.
The following voting procedures shall apply for public hearings held pursuant to this chapter. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.
A.
All actions shall be taken by a majority vote of the members present at the hearing, except as otherwise provided by this chapter and the Municipal Land Use Law.
B.
A member of the Borough agency who was absent for one or more of the meetings at which a hearing was held, or was not a member of the Borough agency at that time, shall be eligible to vote on the matter upon which the hearing was conducted, if such member has available to him or her the transcript or recording of all of the hearings from which he or she was absent or was not a member, and certifies in writing to the agency that he or she has read such transcript or listened to such recording.
[Amended 12-17-01 by Ord. 2118]
C.
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.
§ 102-18 Record of Proceedings.
[Amended 12-17-01 by Ord. 2118]
The Borough agency conducting the hearing shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The agency shall furnish a transcript, or duplicate recording in lieu thereof, on request to any interested party at his or her expense, pursuant to the fees established by this chapter. Said transcript shall be certified in writing by the transcriber to be accurate.
§ 102-19 Record of Decision.
[Amended 06-16-03 by Ord. 2143]
The Borough agency shall include findings of fact and conclusions based thereon in each decision on any application for development, including but not limited to all site plans (including minor site plans for which a public hearing was waived), subdivisions, variances, interpretations, certifications of nonconforming uses or structures or other appeals, and shall reduce the decision to writing. The Borough agency shall provide the findings and conclusions through either: 1) a resolution adopted at a meeting held within the time period provided in this chapter for action by the Borough agency on the application for development, or 2) a memorializing resolution adopted at a meeting held not later than forty-five (45) days after the date of the meeting at which the Borough agency voted to grant or deny approval. The following provisions shall apply to memorializing resolutions:
A.
Only the members of the Borough agency who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. If only one member who voted for the action attends the meeting at which the resolution is presented for adoption, the resolution may be adopted upon the vote of that member.
B.
An action to deny resulting from the failure of a motion to approve an application shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution.
C.
The vote on any memorializing resolution shall be deemed to be a memorialization of the action of the Borough agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required in § 102-20.
D.
If the Borough agency fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing within a stated time, and the cost of the application to Superior Court, including attorney's fees, shall be assessed against the Borough.
§ 102-20 Mailing, Filing and Publication of Decision.
Following adoption of the resolution of the Borough agency, the resolution shall be mailed, filed and published as follows:
A.
A copy of the decision shall be mailed by the Borough agency within ten (10) days of the date of decision to the applicant or, if represented, then to his or her attorney, without separate charge, and to all who request a copy of the decision, for a fee as specified in Article V of this chapter.
B.
A copy of the decision shall also be filed by the Borough agency in the office of the Board Secretary. The Board Secretary shall make a copy of such filed decision available to any interested party for a fee as specified in Article V of this chapter, and available for public inspection at said office during business hours established for said office.
C.
A brief notice of the decision shall be published in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough. Such publication shall be arranged by the Board Secretary; provided that nothing contained in this chapter shall be construed as preventing the applicant from arranging such publication if he or she so desires. The Borough shall instruct the newspaper to charge the applicant the cost of said publication. The published notice shall include a statement advising that copies of the resolution of the Board have been filed in the office of the Board and in the office of the Borough Clerk, and that such copies are available for inspection at said offices.
[Amended 12-17-01 by Ord. 2118]