Totowa City Zoning Code
PART 1
General Provisions
§ 415-1 Short title.
This chapter shall be known and may be cited as the "Zoning and Land Use Regulations of the Borough of Totowa."
§ 415-2 Purpose.
The purpose of this chapter shall be to provide rules, regulations and standards to guide land development in the Borough of Totowa in order to promote the public health, safety and general welfare of the municipality. It shall be administered to ensure the orderly growth and development, the conservation, protection and proper use of land and adequate provision for circulation, utilities and services, in accordance with the purposes of the Municipal Land Use Law (N.J.S.A. 40:55D-2).
§ 415-3 Interpretation and word usage.
B.
Word usage. All words used in the present tense include the future tense; all words in the plural number include the singular number, and all words in the singular number include the plural number, unless the natural construction of the wording indicates otherwise. Unless otherwise specified, all distances shall be measured horizontally. The word "structure" includes the word "building"; the word "lot" includes the word "plot"; the word "used" shall be deemed also to include "occupied"; the term "erected" shall be deemed also to include "constructed," "structurally altered," "enlarged" or "moved"; and the word "shall" is mandatory and not directory. The word "Borough" means the "Borough of Totowa, Passaic County, State of New Jersey." The terms "Mayor and Council," "Board of Adjustment," "Planning Board" and "Zoning Officer" mean the respective Boards and officers of said Borough. The term "Board" shall refer to either the Planning Board or the Zoning Board of Adjustment. The word "person" shall be deemed to include "persons, corporations or partnerships," where appropriate.
§ 415-4 Definitions.
As used in this chapter, the following terms shall have the meanings indicated:
The term applied to a building, structure or use which is clearly incidental or subordinate to the principal building or use and located on the same lot with such principal building or use. Any accessory building attached to a principal building is deemed to be a part of such principal building in applying the bulk regulations to such accessory building.
The Zoning Officer of the Borough of Totowa.
Housing subject to the regulations of the New Jersey Council on Affordable Housing.
As applied to a building or structure, a change or rearrangement in the structural parts or in the exit facilities; or an enlargement, whether by extending on a side or by increasing in height; or the moving from one location or position to another.
A building of not more than eight stories, nor fewer than three stories, designed to house not fewer than four independent dwelling units on each floor.
A developer submitting an application for development or for a permit required in accordance with this chapter.
The application form and all accompanying documents required by ordinance for approval of a subdivision 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.
The Municipal Planning Board unless a different agency is designated by ordinance when acting pursuant to the authority of N.J.S.A. 40:55D-1 et seq.
The area directly under the roof where less than 25% of the floor area has a clear height of at least seven feet, where windows are lacking or where the area is otherwise considered uninhabitable by state or local code.
A building or portion thereof where automobiles are washed with the use of a chain conveyor and blower or steam cleaning device.
A story partly underground, but having at least 1/2 of its clear height above the average level of the adjoining finished grade.
That property abutting on one side of a street and lying between the two nearest intersecting and intercepting streets or railroad rights-of-way, park boundaries or waterways.
The Planning Board or Board of Adjustment of the Borough of Totowa.
Any dwelling or part of a dwelling occupied by five or more unrelated persons not meeting the definition of "family."
[Amended 6-28-2005 by Ord. No. 19-2005]
A landscaped area containing vegetation, fences, walls, landforms and such designed to separate and screen different types of uses.
Any structure built for the support, shelter or enclosure of persons, animals, chattels or movable property of any kind and which is permanently affixed to the land.
The total of areas of outside dimensions on a horizontal plane and ground level of the principal building and all accessory buildings, exclusive of unroofed porches, terraces or steps having vertical faces, which at all points are less than three feet above the level of the ground.
A building separated on all sides from the adjacent open space, or from other buildings or other structures, by a permanent roof and by exterior walls or party walls, pierced only by windows and normal entrance or exit doors.
A building surrounded by open space on the same lot.
The vertical distance from the mean grade measured 10 feet from the front of the building to highest ridge or roof beams which shall exclude built-up planters. For the purposes of measuring building height on any lot that has been regraded to add fill to the predisturbed grade at the building wall, the height of the building shall be measured from the predisturbed grade. The building height measurement for sites that have been lowered in grade from predisturbed grade at the building wall shall be measured from the proposed grade.
[Amended 5-13-2014 by Ord. No. 08-2014]
A nonaccessory building in which a principal use of the lot on which it is located is conducted.
The volume and the shape of a building or of a nonbuilding use in relation to lot lines, center lines of streets, other buildings and all open spaces appurtenant to a building or a nonbuilding use.
That part of a building or nonbuilding use which does not conform to one or more of the applicable bulk regulations prescribing the maximum floor area ratio, maximum height per foot of distance from each lot line, length or height of a building or nonbuilding use, or the minimum lot area per dwelling unit, lot frontage, yards, courts, required spacing between detached buildings on the same lot and usable open space on the lot for the district in which such building or nonbuilding use is located.
A story partly underground and having more than 1/2 of its clear height below the average level of the adjoining finished grade or having less than four feet of its clear height above the average level of the adjoining finished grade.
A certificate issued by the Construction Official upon completion of construction and/or alteration of any building; or change in use of any building; or change in occupancy of a nonresidential building. Said certificate shall acknowledge compliance with all requirements of this chapter, such adjustments thereto granted by the Board of Adjustment or Planning Board and/or all other applicable requirements.
The use of a building or land which is in any manner different from the previous use by way of function, operation, extent, products sold or manufactured and the like, including a change from one permitted use to another kind of permitted use in the same zone, as well as any change in activity which will change, alter, enlarge or affect drainage, traffic, parking, sidewalks, paving, landscaping, fencing, sanitary disposal or other similar considerations under the site plan review requirements.
Any community residential facility housing no more than 15 developmentally disabled persons which provides food, shelter and personal guidance for developmentally disabled persons who require assistance, temporarily or permanently, in order to live independently in the community. Such residences shall not be considered health-care facilities within the meaning of the Health Care Facilities Planning Act, P.L. 1971, c. 136 (N.J.S.A. 26:2H-1 et seq.).
Any shelter approved for a purchase of service contract and certified pursuant to standards and procedures established by regulation of the Department of Human Services pursuant to P.L. 1979, c. 337 (N.J.S.A. 30:14-1 et seq.) providing food, shelter, medical care, legal assistance, personal guidance and other services to not more than 15 persons who have been victims of domestic violence, including any children to such victims, who temporarily require shelter and assistance in order to protect their physical or psychological welfare.
The person appointed pursuant to that section of the Code of the Borough of Totowa, New Jersey, establishing a State Uniform Construction Code enforcing agency.
That percentage of the plot or lot area covered by the building area.
The permitted number of dwelling units per gross acre of land to be developed.
A man-made or natural water collection facility designed to collect surface and subsurface water in order to impede its flow and to release the same gradually at a rate not greater than that prior to the development of the property, into natural or man-made outlets.
The removal of surface water or groundwater from land by drains, grading or other means and includes control of runoff during and after construction or development to minimize erosion and sedimentation, to assure the adequacy of existing and proposed culverts and bridges, to induce water recharge into the ground where practical, to lessen nonpoint pollution to maintain the integrity of stream channels for their biological functions as well as for drainage and the means necessary for water supply preservation or prevention or alleviation of flooding.
Any component of the drainage system.
The lands required for the installation of stormwater sewers or drainage ditches or required along a natural stream or watercourse for preserving the channel and providing for the flow of water therein to safeguard the public against flood damage in accordance with N.J.S.A. 58:1 et seq.
The system through which water flows from the land, including all watercourses, water bodies and wetlands.
A building or portion thereof, but not an automobile house trailer, designed or used exclusively for residential occupancy, including one-family dwellings, two-family dwellings and multiple-family dwellings, but not including hotels and motels.
A building or portion thereof containing three or more dwelling units.
A building designed or used exclusively for occupancy by one family, and includes one-family detached dwellings and group houses.
A building containing two or more dwelling units, each dwelling unit separated by vertical party walls, separate and apart, each having direct access to the outside and the street without use of a common hall or passageway.
A building designed or used exclusively for occupancy by two families.
A building or entirely self-contained portion thereof intended or designed for the nontransient residential use of one family and including complete, permanent and separate kitchen and bathroom facilities. Evidence of self-containment will include complete physical separation from other dwelling units; lockable doors; security separation from other dwelling units; access directly to unit, not through other units; payment of rental or utility costs; and separate service for utilities, mail, telephone and cable television. No dwelling unit shall be allowed which consists solely and totally of living space within the cellar, basement or attic.
A right granted, but not dedicated, for the limited and defined use of private land for a public or quasi-public purpose and within which the owner of the property is restricted by the terms of the easement.
A married couple, their children (natural or adopted) and the mother and/or father of the married couple; a single person, his or her children (natural or adopted) and his or her mother and/or father; or two individuals whose relationship is of a permanent and domestic character, their children (natural or adopted) and the mother and/or father of either or both individuals.
[Amended 3-9-2004 by Ord. No. 03-2004]
Any artificially constructed barrier of wood, masonry, stone, wire, plastic, metal or any other manufactured material or combination of these materials, erected or planted for the enclosure of land and dividing one piece from another.
Any use of land, including structures thereon, that is used or designed to be used for the supply of gasoline or oil or other fuel for the propulsion of motor vehicles, and which may include facilities used or designed to be used for polishing, greasing, washing, dry cleaning or otherwise cleaning or servicing such motor vehicles.
The official action of the Board taken on a preliminary approved major subdivision or site plan after all conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees.
The final map of all or a portion of the site plan or subdivision which is presented to the Board for final approval in accordance with the provisions of this chapter and which, if approved, shall be filed with the proper county office.
The floodway and flood-fringe areas determined by the New Jersey Department of Environmental Protection under § 4 of the Flood Hazard Areas Control Act (P.L. 1979, c. 359).[1]
The flood hazard areas of delineated streams and areas inundated by the one-hundred-year flood in nondelineated areas.
The channel of a natural stream and portions of the flood hazard areas adjoining the channel, which are reasonably required to carry and discharge the floodwater or flood flow of any natural stream.
The sum of the gross horizontal areas of the several floors of a building or buildings and its accessory building(s) on the same lot, except that in residential buildings the cellar, basement and attic floor area not devoted to residential use shall be excluded, but the area of roofed porches and roofed terraces shall be included. All dimensions shall be measured between exterior faces of walls.
The floor area of all buildings on a lot, divided by the area of such lot.
An enclosed space for the storage of one or more motor vehicles, provided that no business occupation or service is conducted for profit therein nor space therein for more than one car is rented to a nonresident of the premises.
Any garage other than a private garage, available to the public, operated for gain, and which is used for storage, repair, rental, greasing, washing, servicing, adjusting or equipping of automobiles or other motor vehicles.
The completed surfaces of lawns, walks and roads brought to grades as shown on approval plans relating thereto.
The receipt, modification, repackaging, storage or distribution of items and materials which are or become corporate products.
[Added 1-28-1997 by Ord. No. 2-97]
A building which has a common entrance or entrances and contains living and sleeping accommodations for 10 or more persons, for hire.
Any portable or mobile structure or vehicle used as a dwelling unit or for sleeping purposes or for the conduct of business, whether or not such vehicle or structure is attached to a foundation.
The percentage of the lot area which is improved or is proposed to be improved, including but not limited to driveways, parking lots, pedestrian walkways, patios, terraces, gravel pathways, pavers and other man-made improvements that cover the ground surface and are more impervious than the natural ground surface, exclusive of buildings and structures.
[Added 5-9-2006 by Ord. No. 08-2006]
An area of land, with or without buildings, used for or occupied by a deposit, collection or the storage, outside of a completely enclosed building, of used and discarded materials such as wastepaper, rags or scrap metal, used building materials, house furnishings, machinery, vehicles or parts thereof, etc., with or without the dismantling, processing, salvage sale or other use or disposition of the same. A deposit or the storage on a lot of two or more wrecked or broken-down vehicles or parts of two or more such vehicles for one month or more in an residential district or for three months or more in any other district in the Borough shall be deemed to be a junkyard.
An off-street space or berth on the same lot with a building, or contiguous to a group of buildings, for the temporary parking of a commercial vehicle while loading or unloading merchandise or materials. Such space must have clear means of ingress and egress to a public street at all times.
A designated parcel, tract or area of land, established by a plat or otherwise as permitted by law and to be used, developed or built upon as a unit.
The mean horizontal distance between the front and rear lot lines.
The horizontal distance measured along the full length of the front lot line. In no case shall this distance be less than 50 feet in any district.
A boundary line of a lot.
That boundary of a lot which is along an existing or dedicated public street or, where no public street exists, is along a public way. The owner of a corner lot may select either street lot line as the "front lot line."
That boundary of a lot which is most distant from and is most nearly parallel to the front lot line.
Any boundary of a lot which is not a front lot line or a rear lot line.
The straight-line distance between points on opposite side lot lines measured at the front yard setback line.
Any security, other than cash, which may be accepted by the Borough for the maintenance of any improvements required by N.J.S.A. 40:55D-1 et seq. and this chapter.
A development plan for one or more lots not classified as a minor site plan.
All subdivisions not classified as minor subdivisions.
A composite of the mapped and written proposals recommending the physical development of the Borough which shall have been duly adopted by the Planning Board.
A development plan not involving any new buildings, any additions to an existing building or any on-site improvements.
Any subdivision containing not more than three lots, including the remaining land fronting on an existing minor street, not involving any new street or road or the extension of municipal facilities and not adversely affecting the development of the remainder of the parcel or adjoining property and not in conflict with any provision or portion of the Master Plan, Official Map, zoning or other provisions of this chapter.
An area with a specified minimum contiguous acreage to be developed as a single entity according to a plan containing one or more residential clusters, which may include appropriate accessory or public or quasi-public uses, all primarily for the benefit of the residential development.
A use, generally a principal use of land, to which the buildings on the lot, if any, are accessory, such as an open storage yard for materials or equipment and on which the buildings, if any, may be used:
A lot, the area, dimension or location of which was lawful prior to the adoption, revision or amendment of this Zoning Ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.
A structure, the size, dimension or location of which was lawful prior to the adoption, revision or amendment of this Zoning Ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.
Any use of land, buildings or structures which was lawful prior to the adoption, revision or amendment of this Zoning Ordinance, but which does not now comply with all of the regulations of this chapter governing use for the zoning district in which such use is located.
Any structure licensed by the State of New Jersey to operate as a nursing home.
A school operated on a regular basis designed to provide daytime care or instruction for two or more children too young to enter public school.
A map adopted in accordance with N.J.S.A. 40:55D-32 through 40:55D-36. Such map shall be deemed to be conclusive with respect to the location and width of the streets, public parks and playgrounds and drainage rights-of-way shown thereon.
The keeping overnight of any item, not a structure, which is not in a completely enclosed building, except commercial vehicles as regulated by § 415-103C(6) and (7) and private passenger motor vehicles in operating condition and with license plates attached; as an accessory use to the residence only, toys, bicycles, garden equipment and similar customary appurtenances of residential living; as an accessory use to a residence, boats and similar waterborne vehicles.
Any individual, firm, association, syndicate, copartnership or corporation having sufficient proprietary interest in the land sought to be developed to commence and maintain proceedings to develop the same under this chapter.
An off-street space accessible and usable for the parking of one motor vehicle exclusive of passageways and aisles appurtenant thereto.
A criterion established to control noise, odor, smoke, toxic or noxious matter, vibration, fire and explosive hazards and glare or heat generated by or inherent in uses of land or buildings.
Any security which may be accepted in lieu of a requirement that certain improvements be made before the Board or other approving body approves a plat, including performance bonds, escrow agreements and other similar collateral or surety agreements.
The map of a subdivision or site plan.
The preliminary map indicating the proposed layout of the subdivision which is submitted to the Borough for consideration and approval and meeting the requirements of this chapter.
The replenishment of underground water reserves.
An establishment at which food and drink are sold for consumption on the premises where patrons are seated within an enclosed building and served by waiters/waitresses.
Any person 62 years of age or older.
A multifamily dwelling designed for occupancy by senior citizens.
As a conditional use in the B-2 Zone only, a group of at least six stores or retail outlets which may be housed in one or more structures on the same lot.
Any device for visual communication that is used for the purpose of bringing the subject thereof to the attention of the public or attracting public attention to an establishment or premises. The word "sign" includes the word "billboard," but does not include the flag, pennant or the insignia of any nation, state, city or other political unit or of any political, educational, charitable, philanthropic, civic, professional, religious or like campaign, drive, movement or event.
A sign which directs attention to a business, commodity, service or entertainment conducted, sold or offered elsewhere than on the premises and only incidentally on the premises, if at all.
The area within the shortest line that can be drawn around the outside perimeter of a sign, including all decorations but excluding supports, if any, unless said supports are illuminated. In computing the area of a sign, the area of all faces of such sign shall be included. A neon tube, a string of incandescent lights or similar device outlining any part of a building or hung upon any part of a building or lot shall be deemed to have a minimum dimension of one foot.
A sign which directs attention to a business or profession conducted on the premises.
A development plan of one or more lots on which is shown:
The existing and proposed conditions of the lot, including but not necessarily 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.
Any other information that may be reasonably required in order to make an informed determination pursuant to this chapter.
The sketch map of a development of sufficient accuracy to be used for the purpose of discussion and classification and meeting the requirements of this chapter.
An establishment which serves food prepared to order for consumption off the premises, having no facilities for on-site consumption but may have a waiting area; including but not limited to Chinese food, pizza, deli and bagel stores.
Flow on the surface of the ground resulting from precipitation.
That portion of a building included between the surface of any floor and the surface of the floor next above or, if there is no floor above the space between the floor and the ceiling next above. A basement shall be counted as a "story" for the purposes of this chapter.
Any street, avenue, boulevard, road, lane, parkway, viaduct, alley or other way which is an existing state, county or Borough roadway, or a street or way shown upon a plat heretofore approved pursuant to law or approved by official action; or a street or way on a plat duly filed and recorded in the office of the county recording officer prior to the appointment of a Planning Board and the grant to such Board of the power to review plats; and includes the land between the street lines, whether improved or unimproved, and may comprise pavement, shoulders, gutters, sidewalks, parking areas and other areas within the street lines. For the purpose of this chapter, "streets" shall be classified as follows:
ARTERIAL STREETSThose which are used primarily for fast or heavy traffic.
COLLECTOR STREETSThose which carry traffic from minor streets to the major system of arterial streets, including the principal entrance streets of a residential development and streets for circulation within such a development.
MINOR STREETSThose which are used primarily for access to the abutting properties.
MARGINAL ACCESS STREETSStreets which are parallel to and adjacent to arterial streets and highways and which provide access to abutting properties and protection from through traffic.
ALLEYSMinor ways which are used primarily for vehicular service access to the back or the side of properties otherwise abutting on a street.
CULS-DE-SACAny street having only one point of ingress/egress, to be measured from that single access point to its furthest extreme end.
A boundary line of a dedicated street; a lot line coinciding with such line.
Altered by any change in or addition to the supporting members of a structure.
Any combination of materials forming any construction, the use of which requires location on the ground or attachment to something having location on the ground, excluding vehicles.
Any individual, firm, association, syndicate, copartnership, corporation, trust or any other legal entity commencing proceedings under this chapter to effect a subdivision of land hereunder for himself or for another.
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 "subdivision" within the meaning of this chapter, if no new streets are created:
Divisions of land found by the Planning Board or Subdivision Committee thereof appointed by the Chairman to be for agricultural purposes where all resulting parcels are five acres or larger in size.
Divisions of property by testamentary or intestate provisions.
Division of property upon court order, including but not limited to judgments of foreclosure.
Consolidation of existing lots by deed or other recorded instrument.
The conveyance of one or more adjoining lots, tracts or parcels of land, owned by the same person or persons and all of which are found and certified to conform to the requirements of the development regulations contained in this chapter for frontage on an improved street, zoning district regulations and for design standards and improvement specifications; and further provided that each lot, tract or parcel of land is shown and designated as separate lots, tracts or parcels of land shown on the official Tax Map of the Borough which are owned by the same person or persons but which individually do not conform to the zoning district regulations and/or which do not meet the required frontage on an improved street shall be treated under this chapter as a single parcel of land no portion of which may be conveyed without subdivision approval as prescribed by this chapter.
The term "subdivision" shall also include the term "resubdivision."
A committee of at least three Planning Board members which may be appointed by the Chairman of the Board for the purpose of classifying subdivisions in accordance with the provisions of this chapter and having such other duties relating to land subdivision as may be conferred on this Committee by the Board.
A recreational vehicle, travel trailer, camper or other transportable, temporary dwelling unit, designed and constructed for travel and recreational purposes.[2]
Any premises where one or more trailers are parked or any premises used or held out for the purpose of supplying to the public a parking place for trailers.
Any use designated as allowed by right in this chapter shall be permitted, and all required certificates and permits shall be issued without any administrative discretion on the part of any elected or appointed official or duly constituted board, provided that the use complies with all requirements of this chapter.
The specified purpose for which land or a building is designed, arranged or intended, or for which it is or may be occupied or maintained.
Space to be leased for the storage of items or materials for separate entities.
[Added 1-28-1997 by Ord. No. 2-97]
The space on a lot extending along a lot line between such lot line and a principal building or buildings or nonbuilding use occupying such lot.
A yard extending the full width of the lot and situated between the street line and the front line of the building projected to the side lines of the lot. The depth of the front yard shall be measured between the front line of the building and the street line. Covered porches, whether enclosed or unenclosed, shall be considered as part of the main building and shall not project into a required front yard.
A yard extending the full width of the lot and situated between the rear line of the building and the rear line of the lot.
A yard situated between the building and the side line of the lot extending from the front yard to the rear yard.
The administrative officer as defined by this chapter and the Borough official responsible for the enforcement of this chapter. The Zoning Officer shall be appointed by the Mayor and Council.
§ 415-5 Adoption of rules and regulations.
Every municipal agency shall adopt and may amend reasonable rules and regulations, not inconsistent with this chapter, for the administration of its functions, powers and duties and shall furnish a copy thereof to any person upon request and may charge a reasonable fee for such copy. Copies of all such rules and regulations and amendments thereto shall be maintained in the office of the Borough Clerk.
§ 415-6 Meetings of municipal agencies.
A.
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 shall be scheduled no less than once a month and shall be held as scheduled unless canceled for lack of applications for development to process. The municipal agency may hold special meetings, at the call of the Chairman or on 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. No action shall be taken at any meeting without a quorum being present. All actions shall be taken by a majority vote of the members present at the meeting, except as otherwise required by N.J.S.A. 40:55D-32, 40:55D-34, 40:55D-62, 40:55D-63 or 40:55D-70d. Failure of a motion to receive the number of votes required to approve an application pursuant to the exceptional vote requirements of N.J.S.A. 40:55D-70d shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for the governing body.
B.
All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with municipal regulations. 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 this chapter.
C.
Minutes of every regular or special meeting shall be kept and shall include the names of 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 reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the administrative officer. 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 for this use.
§ 415-7 Hearings; filing of ordinances.
A.
The Board shall hold a hearing on each application for development, except for concept plan review. The Planning Board shall also hold a hearing on the adoption, revision or amendment of a Master Plan. The governing body shall hold a hearing on the adoption or amendment of a development regulation, an Official Map or a capital improvements program.
(1)
The municipal agency shall make the rules governing such hearings. 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. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
(2)
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.
(3)
The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
(4)
Technical rules of evidence shall not be applicable to the hearing, but the agency may exclude irrelevant, immaterial or unduly repetitious evidence.
(5)
The municipal agency shall provide for the verbatim recording of the proceedings by either stenographic, 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. Said transcript shall be certified in writing by the transcriber to be accurate.
(6)
The municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing.
(a)
The municipal agency shall provide the findings and conclusions through:
[1]
A resolution adopted at a meeting held within the time period provided in the act for action by the municipal agency on the application for development; or
[2]
A memorializing resolution adopted at a meeting held no later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal 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.
[3]
An action pursuant to § 415-6A of this chapter (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. The vote on any such resolution shall be deemed to be a memorialization of the 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 by Subsection A(7) and (8) of this section. If the municipal 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, including attorney's fees, shall be assessed against the municipality.
(7)
A copy of the decision shall be mailed by the municipal agency within 10 days of the date of decision to the applicant or, if represented, then to his attorney, without separate charge, and to all who request a copy of the decision for a reasonable fee. A copy of the decision shall also be filed by the municipal agency in the office of the Borough Clerk. The Borough Clerk shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at his office during reasonable hours.
(8)
A brief notice of the decision shall be published in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the Board Clerk, provided that nothing in this chapter shall be construed as preventing the applicant from arranging such publication if he so desires. The municipality may make a reasonable charge for its publication. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the municipality or the applicant.
B.
Notice of hearing on application for development or adoption of Master Plan. Notices pursuant to Subsection B(1) and (2) below shall state the date, time and place of the hearing, the nature of the matters to be considered and, in the case of notices pursuant to Subsection B(1) below, 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 Municipal Tax Assessor's office and the location and times at which any maps and documents for which approval is sought are available pursuant to Subsection A(1), hereinabove.
(1)
Notice of applications. Notice pursuant to Subsection B(1)(a), (b), (c), (d), (e), (f), (g) and (h) of this section shall be given by the applicant. Said notice shall be given at least 10 days prior to the date of the hearing.
(a)
Public notice of a hearing on an application for development shall be given, except for minor subdivisions, minor site plan and final approval, by publication in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality.
(b)
Notice of a hearing requiring public notice pursuant to Subsection B(1)(a) of this section shall be given to the owners of all real property, as shown on the current tax duplicate, located in the state and 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 property 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. 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 for any development application shall be given to public utilities and cable television companies in accordance with Subsection B(1)(h) below.
(c)
Upon the written request of an applicant, the Tax Assessor shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners and registered utilities to whom the applicant is required to give notice pursuant to Subsection B(1)(b) 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 not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name or $10, whichever is greater, may be charged for such list.
(d)
Notice of 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.
(e)
Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the Official County Map or on the County Master Plan, adjoining other county land or situated within 200 feet of a municipal boundary.
(f)
Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.
(g)
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 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 Subsection A(1) hereinabove.
(h)
Notice of hearings on applications for approval of major subdivisions or major site plans requiring notice pursuant to Subsection B(1)(a) above shall be given to any 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. Such notice shall be by personal service or certified mail on the person whose name appears on the required registration form.
(i)
The applicant shall file an affidavit of proof of service with the municipal agency holding the hearing on the application for development in the event that the applicant is required to give notice pursuant to this section.
(2)
Notice concerning Master Plan. The Planning Board shall give:
(a)
Public notice of a hearing on the adoption, revision or amendment of the Master Plan. Such notice shall be given by publication in the official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the municipality, at least 10 days prior to the date of hearing.
(b)
Notice by personal service or certified mail to the Clerk of an adjoining municipality of all hearings on the adoption, revision or amendment of a Master Plan involving property situated within 200 feet of such adjoining municipality, at least 10 days prior to the date of any such hearing.
(c)
Notice by personal service or certified mail to the County Planning Board of all hearings on the adoption, revision or amendment of the Municipal Master Plan, at least 10 days prior to the date of the hearing, such notice to include a copy of any such proposed Master Plan or any revision or amendment thereto; and notice of the adoption, revision or amendment of the Master Plan not more than 30 days after the date of such adoption, revision or amendment, such notice to include a copy of the Master Plan or revision or amendment thereto.
(3)
Effect of mailing notice. Any notice by certified mail shall be deemed complete upon mailing.
C.
Notice of hearing on ordinance or capital improvement program; notice of action on capital improvement or Official Map.
(1)
Notice by personal service or certified mail shall be made to the Clerk of an adjoining municipality of all hearings on the adoption, revision or amendment of a development regulation involving property situated within 200 feet of such adjoining municipality, at least 10 days prior to the date of any such hearing.
(2)
Notice by personal service or certified mail shall be made to the County Planning Board of all hearings on the adoption, revision or amendment of any development regulation at least 10 days prior to the date of the hearing, and the adoption, revision or amendment of the municipal capital improvement program or Municipal Official Map not more than 30 days after the date of such adoption, revision or amendment. Any notice provided hereunder shall include a copy of the proposed development regulation, the Municipal Official Map or the municipal capital improvement program or any proposed revision or amendment thereto, as the case may be.
D.
Filing of ordinances.
(1)
This chapter or any revision or amendment thereto shall not take effect until a copy thereof has been filed with the County Planning Board.
(2)
An Official Map shall not take effect until filed with the County Recording Officer.
(3)
Copies of this chapter and any revisions or amendments thereto shall be filed and maintained in the office of the Borough Clerk.
§ 415-8 Scope of authority.
Any power expressly authorized by this chapter to be exercised by the Planning Board or the Board of Adjustment shall not be exercised by any other body, except as otherwise provided in this chapter.
§ 415-9 Interruption 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 under this chapter or under any act repealed by this chapter, as the case may be, shall be suspended for the period of time said legal action is pending or such directive or order is in effect.
§ 415-10 Conditional approvals.
A.
In the event that a developer submits an application for development proposing a development that is barred or prevented, directly or indirectly, by a legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health and welfare, the municipal agency shall process such application for development, and if such application for development complies with municipal development regulations, the municipal agency shall approve such application, conditioned on removal of such legal barrier to development.
B.
In the event that a development proposed by an application for development requires an approval by 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 municipality shall make a decision on any application for development within the time period provided in this chapter or within such 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.
§ 415-11 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. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided 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 § 415-62.
§ 415-12 Application fees.
The following Schedule of Fees is established for the various applications for development and other matters which are the subject of this chapter:
A.
Variances.
[Amended 12-28-2004 by Ord. No. 22-2004; 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009; 4-9-2019 by Ord. No. 03-2019]
(1)
For proceedings governed by N.J.S.A. 40:55D-70a: $500.
(2)
For proceedings governed by N.J.S.A. 40:55D-70b: $350.
(5)
For proceedings governed by N.J.S.A. 40:55D-34: $500.
(7)
Where subdivision, site plan review or conditional use proceedings are required, the above stated fees shall be in addition to those fees required for subdivision, site plan review or conditional use permits.
(8)
In order to qualify for the lower fees established for residential applications hereinabove, an application must be exclusively residential in character and can be only for a single use on the lot. Any application not complying with each of these conditions shall fall under the higher fee schedule.
B.
Subdivisions.
[Amended 12-28-2004 by Ord. No. 22-2004; 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009; 4-9-2019 by Ord. No. 03-2019]
(1)
Minor subdivision: $750, plus $250 per lot.
(3)
Where a subdivision includes other zoning or land use relief, these fees shall be cumulative and shall not exclude the paying of the fees set forth elsewhere for variances, site plan review, conditional use approval or any other land use relief.
C.
Site plans.
(1)
Minor site plan: $250.
[Amended 2-28-2004 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009]
(2)
Major site plan.
[Amended 4-9-2019 by Ord. No. 03-2019]
(a)
Conceptual review: 10% of the preliminary fee (to be applied to preliminary fee at time of preliminary submission).
(b)
Preliminary approval: $1,000, plus $20 per 100 square feet of proposed building floor area or part thereof; or $25 per dwelling unit.
(c)
Final approval: $500, plus $10 per 100 square feet of proposed building floor area or part thereof; or $15 per dwelling unit.
D.
Conditional use applications. Applications for conditional use shall be subject to payment of a fee in the amount of $750.
[Amended 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009; 4-9-2019 by Ord. No. 03-2019]
E.
Zone changes. Applications or requests to consider a change in the Zoning Ordinance[1] made either to the Planning Board or the Borough Council shall be subject to the payment of a fee of $1,200, plus an escrow deposit in the amount of $2,500 which shall be governed in accord with the provision of § 415-13.
[Amended 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009]
G.
Escrows.
[Amended 2-28-2006 by Ord. No. 04-2006; 4-9-2019 by Ord. No. 03-2019]
(1)
For engineering fees related to proposed site plan excluding a site plan for one-family residential construction: $1,000 for the first acre of land or part thereof included within the site development plan;
(2)
For engineering fees related to a proposed site plan for one-family residential construction: $750.
§ 415-13 Escrow accounts and technical review fees.
[Amended 2-24-1998 by Ord. No. 3-98]
A.
Professional fees. The Chief Financial Officer shall make all of the payments to professionals for services rendered to the Borough of Totowa or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes authorized under the Municipal Land Use Law.[1] Such fees or charges shall be based upon a schedule established by resolution. The application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the municipality. The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements. The Borough or approving authority shall not bill the applicant or charge any escrow account or deposit authorized below for any municipal, clerical or administrative functions, overhead expenses, meeting room charges or any other municipal costs and expenses, except as provided for in this section, nor shall a municipal professional add any such charges to his bill. If the salary, staff support and overhead for a municipal professional are provided by the Borough, the charge shall not exceed 200% of the sum of the products resulting from multiplying the hourly base salary, which shall be established annually by ordinance, of each of the professionals by the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the municipality when fees are not reimbursed or otherwise imposed on applicants or developers.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et. seq.
B.
Escrows.
(1)
A deposit toward anticipated municipal expenses for the aforesaid professional services shall be required, which deposit shall be placed in an escrow account in accordance with the provisions of N.J.S.A. 40:55D-53.1. The amount of the deposit required shall be reasonable in regard to the scale and complexity of the development. The amount of the initial deposit required shall be as follows:
(a)
For engineering fees related to a proposed site plan excluding a site plan for one-family residential construction:
[1]
Seven hundred fifty dollars for the first acre of land or part thereof included within the site development plan;
[2]
An additional sum computed at the rate of $100 per acre for each acre of land, or part thereof, in excess of one acre;
[3]
Two hundred fifty dollars to review a soil movement application under Chapter 336, Soil Removal and Grading, of the Code of the Borough of Totowa for movement of up to 350 cubic yards of soil, plus $0.25 per yard in excess of 350 cubic yards;
[4]
An additional sum computed at the rate of $5 per 100 square feet for the first 5,000 square feet of the building's gross floor area, or part thereof, included within the site development plan;
[5]
An additional sum computed at the rate of $3 per 100 square feet of the building gross floor area in excess of 5,000 square feet;
[6]
An additional sum required by the Borough stormwater drainage provisions, if applicable;
[7]
An additional sum as may be required by the reviewing Board with regard to the Borough floodplain development provisions, if applicable;
[8]
An additional sum as may be required by the reviewing Board with regard to the Borough's landscaping and shade trees provision, if applicable.
(b)
For engineering fees related to a proposed site plan for one-family residential construction:
[1]
Five hundred dollars;
[2]
Two hundred fifty dollars to review a soil movement application under Chapter 336, Soil Removal and Grading, of the Code of the Borough of Totowa for movement of up to 350 cubic yards of soil, plus $0.25 per each cubic yard in excess of 350 yards;
(c)
For engineering fees related to proposed major subdivision.
[1]
Preliminary major subdivision approval:
[a]
One thousand dollars, plus $250 per proposed lot in excess of four lots and up to 20 lots;
[b]
One hundred dollars per proposed lot in excess of 20 lots;
[c]
Two hundred fifty dollars to review a soil movement application under the General Ordinances for movement up to 350 cubic yards of soil plus $0.25 per each cubic yard in excess of 350 cubic yards;
[3]
Minor subdivision:
[a]
Five hundred dollars for up to and including three proposed lots that qualify as a minor subdivision;
[b]
Two hundred fifty dollars to review a soil movement application under General Ordinances for movement of up to 350 cubic yards of soil, plus $0.25 per each cubic yard in excess of 350 cubic yards;
(2)
Deposits for inspection fees shall be established in accordance with subsection h of N.J.S.A. 40:55D-53.
C.
Vouchers. Each payment charged to the deposit for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service and, for each date the services performed, the hours spent to one-quarter-hour increments, the hourly rate and the expenses incurred. All professionals shall submit vouchers to the Chief Financial Officer of the Borough on a monthly basis in accordance with schedules and procedures established by the Chief Financial Officer. If the services are provided by a Borough employee, the Borough employee shall prepare and submit to the Chief Financial Officer a statement containing the same information required on a voucher, on a monthly basis. The professional shall send an informational copy of all vouchers or statements submitted to the Chief Financial Officer simultaneously to the applicant. The Chief Financial Officer shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursement and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis, if monthly charges are $1,000 or less, or on a monthly basis, if monthly charges exceed $1,000. If an escrow account or deposit contains insufficient funds to enable the Borough or approving authority to perform required application reviews or improvement inspections, the Chief Financial Officer shall provide the applicant with a notice of insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall, within a reasonable time period, post a deposit to the account in an amount to be agreed upon by the Borough or approving authority and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.
D.
Closeout. 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 improvement inspection escrows and deposits. The applicant shall send written notice by certified mail to the Chief Financial Officer and the approving authority and to the relevant municipal professional that the application or the 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. The Chief Financial Officer shall render a written final 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.
E.
Additional provisions. All professional charges for review of an application for development, review and preparation of documents or inspection of improvements shall be reasonable and necessary, given the status and progress of the application or construction. Review fees shall be charged only in connection with an application for development presently pending before the approving authority or upon review of compliance with conditions of approval or review of requests for modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any state governmental agency and not under municipal jurisdiction, except to the extent consultation with a state agency is necessary due to the effect of state approvals in the subdivision or site plan. Inspection fees shall be charged only for actual work shown on a subdivision or site plan or required by an approving resolution. Professionals inspecting improvements under construction shall charge only for inspections that are reasonably necessary to check the progress and quality of the work, and such inspections shall be reasonably based on the approved development plans and documents.
F.
Replacement of professional. If the municipality retains a different professional or consultant in the place of the professional originally responsible for development, application review or inspection of improvements, the municipality or approving authority shall be responsible for all time and expenses of the new professional to become familiar with the application or the project, and the municipality or approving authority shall not bill the applicant or charge the deposit or the escrow account for any such services.
G.
Engineer's estimate; appeal. The cost of installation of improvements for the purposes of N.J.S.A. 40:55D-53 shall be estimated by the Municipal Engineer based on documented construction costs for public improvements prevailing in the general area of the municipality. The developer may appeal the Municipal Engineer's estimate to the county construction board of appeals in accordance with the provisions of N.J.S.A. 40:55D-53.
H.
Appeals.
(1)
An applicant shall notify, in writing, the governing body with copies to the Chief Financial Officer, the approving authority and the professional whenever the applicant disputes the charges made by a professional for service rendered to the municipality in reviewing applications for development, review and preparation of documents, inspection of improvements or other charges. The governing body, or its designee, shall, within a reasonable time period, attempt to remediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals any charge to an escrow account or a deposit by any municipal professional or consultant or the cost of the installation of improvements estimated by the Municipal Engineer. During the pendence of any appeal, the municipality 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 guaranties, the issuance of construction permits or certificates of occupancy or any other approval or permit because an appeal has been filed or is pending under this subsection. The Chief Financial Officer of the municipality 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 municipality shall reimburse the deposit or escrow account in the amount of any such 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 municipality, the professional or consultant shall reimburse the municipality in the amount of any such disallowed charge.
(2)
In the event that any of the provisions of the Land Use Act referred to herein or incorporated herein is amended or in any way modified the reference contained to such provisions of the Land Use Act, for the purpose of the within subsection, shall be deemed to refer to section as so amended or modified from time to time without the need for any further amendment to the within subsection.
(3)
Any provisions of the within subsection which are inconsistent with the provisions of the Land Use Act shall be deemed to be subordinate to the provisions of the Land Use Act and the provisions of the Land Use Act, with which any of the provisions of the within subsection may be inconsistent, are deemed to be applicable as though such provisions of the Land Use Act are fully incorporated herein by reference.
§ 415-14 Development fees.
[Added 9-10-2002 by Ord. No. 22-2002; amended 5-10-2016 by Ord. No. 02-2016; 11-13-2018 by Ord. No. 17-2018]
A.
Purpose. This section establishes standards for the collection, maintenance, and expenditure of development fees that are consistent with COAH's regulations developed in response to P.L. 2008, c. 46, Sections 8 and 32 to 38 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected pursuant to this section shall be used for the purpose of providing very-low, low and moderate income housing in accordance with a court-approved spending plan.
B.
Court approval required.
(1)
This section shall not be effective unless and until approved by the Superior Court in connection with the Borough of Totowa's declaratory judgment action concerning its Third Round affordable housing obligations, Docket No. PASL-2406-15.
(2)
The Borough of Totowa shall not spend development fees collected pursuant to this section unless and until the Superior Court has approved a spending plan for such fees.
C. AFFORDABLE HOUSING DEVELOPMENT COAH OR THE COUNCIL COURT DEVELOPER DEVELOPMENT FEE EQUALIZED ASSESSED VALUE GREEN BUILDING STRATEGIES
Definitions. The following terms, as used in this section, shall have the following meanings:
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipally sponsored construction project or a 100% affordable housing development.
The New Jersey Council on Affordable Housing established under the Fair Housing Act, or any successor agency.
The Superior Court of New Jersey, Law Division, Passaic County.
The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property as authorized by Holmdel Builder's Association v. Holmdel Borough, 121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27d-301 et seq., and regulated by applicable COAH rules.
The assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with Sections 1, 5, and 6 of P.L. 1973, c.123 (N.J.S.A. 54:1-35a through 54:1-35c).
Strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.
D.
Residential development fees.
(1)
Imposition of fees.
(a)
Within the Borough of Totowa, all residential developers, except for developers of the types of developments specifically exempted below and developers of developments that include affordable housing, shall pay a fee of 1% of the equalized assessed value for all new residential development provided no increased density is permitted. Development fees shall also be imposed and collected when an additional dwelling unit is added to an existing residential structure; in such cases, the fee shall be calculated based on the increase in the equalized assessed value of the property due to the additional dwelling unit.
(b)
When an increase in residential density is permitted pursuant to a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers shall be required to pay a "bonus" development fee of 6% of the equalized assessed value for each additional unit that may be realized, except that this provision shall not be applicable to a development that will include affordable housing. If the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.
(2)
Eligible exactions, ineligible exactions and exemptions for residential developments.
(a)
Affordable housing developments and/or developments where the developer has made a payment in lieu of on-site construction of affordable units, if permitted by ordinance or by agreement with the Borough of Totowa, shall be exempt from the payment of development fees.
(b)
Developments that have received preliminary or final site plan approval prior to the adoption of this section shall be exempt from the payment of development fees, unless the developer seeks a substantial change in the original approval. Where site plan approval is not applicable, the issuance of a zoning permit and/or construction permit shall be synonymous with preliminary or final site plan approval for the purpose of determining the right to an exemption. In all cases, the applicable fee percentage shall be determined based upon the Development Fee Ordinance in effect on the date that the construction permit is issued.
(c)
Owner-occupied residential structures demolished and replaced as a result of a fire, flood, or natural disaster shall be exempt from paying a development fee.
(d)
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
(e)
Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, which requires the issuance of a certificate of occupancy. For example, when a single-family home is converted to a two-family home or a single-family home is converted to an apartment building. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
(f)
Development fees shall be imposed and collected when a certificate of occupancy is issued for a new residential unit.
E.
Nonresidential development fees.
(1)
Imposition of fees.
(a)
Within all zoning districts, nonresidential developers, except for developers of the types of developments specifically exempted below, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.
(b)
Within all zoning districts, nonresidential developers, except for developers of the types of developments specifically exempted below, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.
(c)
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvements and the equalized assessed value of the newly improved structure, i.e., land and improvements, and such calculation shall be made at the time a final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
(2)
Eligible exactions, ineligible exactions and exemptions for nonresidential development.
(a)
The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to a 2.5% development fee, unless otherwise exempted below.
(b)
The 2.5% development fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within the existing footprint, reconstruction, renovations and repairs.
(c)
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption." Any exemption claimed by a developer shall be substantiated by that developer.
(d)
A developer of a nonresidential development exempted from the nonresidential development fee pursuant to the Statewide Non-Residential Development Fee Act shall be subject to the fee at such time as the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy for the nonresidential development, whichever is later.
(e)
If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Borough of Totowa as a lien against the real property of the owner.
F.
Collection procedures.
(1)
Upon the granting of a preliminary, final or other applicable approval for a development, the approving authority or entity shall notify or direct its staff to notify the Construction Official responsible for the issuance of a construction permit.
(2)
For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption" to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The Construction Official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.
(3)
The Construction Official responsible for the issuance of a construction permit shall notify the Borough Tax Assessor of the issuance of the first construction permit for a development which is subject to a development fee.
(4)
Within 90 days of receipt of such notification, the Borough Tax Assessor shall prepare an estimate of the equalized assessed value of the development based on the plans filed.
(5)
The Construction Official responsible for the issuance of a final certificate of occupancy shall notify the Borough Tax Assessor of any and all requests for the scheduling of a final inspection on a property which is subject to a development fee.
(6)
Within 10 business days of a request for the scheduling of a final inspection, the Borough Tax Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements associated with the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.
(7)
Should the Borough of Totowa fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in Subsection b. of Section 37 of P.L. 2008, c.46 (N.J.S.A. 40:55D-8.6).
(8)
Except as provided in Subsection E(1)(c) hereinabove, 50% of the initially calculated development fee shall be collected at the time of issuance of the construction permit. The remaining portion shall be collected at the time of issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the time of issuance of the construction permit and that determined at the time of issuance of the certificate of occupancy.
(9)
Appeal of development fees.
(a)
A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by the Borough of Totowa. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interestf earned on amounts escrowed shall be credited to the prevailing party.
(b)
A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by the Borough of Totowa. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
G.
Affordable housing trust fund.
(1)
There is hereby created a separate, interest-bearing Affordable Housing Trust Fund to be maintained by the Chief Financial Officer of the Borough of Totowa for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
(2)
The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:
(a)
Payments in lieu of on-site construction of a fraction of an affordable unit, where permitted by ordinance or by agreement with the Borough of Totowa;
(b)
Funds contributed by developers to make 10% of the adaptable entrances in a townhouse or other multistory attached dwelling unit development accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Totowa's affordable housing program.
(3)
In the event of a failure by the Borough of Totowa to comply with the conditions of the judgment of compliance or a revocation of the judgment of compliance; or a failure to implement the approved spending plan and to expend funds within the applicable required time period as set forth in In re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J. Super. 563); or the expenditure of funds on activities not approved by the court; or for other good cause demonstrating the unapproved use(s) of funds, the court may authorize the State of New Jersey, Department of Community Affairs, Division of Local Government Services (LGS), to direct the manner in which the funds in the Affordable Housing Trust Fund shall be expended, provided that all such funds shall, to the extent practicable, be utilized for affordable housing programs within the Borough of Totowa, or, if not practicable, then within the County.
Any party may bring a motion before the Superior Court presenting evidence of such condition(s), and the Court may, after considering the evidence and providing the municipality a reasonable opportunity to respond and/or to remedy the noncompliant condition(s), and upon a finding of continuing and deliberate noncompliance, determine to authorize LGS to direct the expenditure of funds in the Trust Fund. The Court may also impose such other remedies as may be reasonable and appropriate to the circumstances.
(4)
Interest accrued in the Affordable Housing Trust Fund shall only be used to fund eligible affordable housing activities approved by the Court.
H.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved by the Superior Court. Funds deposited in the Affordable Housing Trust Fund may be used for any activity approved by the Court to address the Borough of Totowa's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to, preservation or purchase of housing for the purpose of maintaining or implementing affordability controls; housing rehabilitation; new construction of affordable housing units and related costs; accessory apartments; a market to affordable program; Regional Housing Partnership programs; conversion of existing nonresidential buildings to create new affordable units; green building strategies designed to be cost saving and in accordance with accepted national or state standards; purchase of land for affordable housing; improvement of land to be used for affordable housing; extensions or improvements of roads and infrastructure to affordable housing sites; financial assistance designed to increase affordability; administration necessary for implementation of the Housing Element and Fair Share Plan; and/or any other activity permitted by the Court and specified in the approved spending plan.
(2)
Funds shall not be expended to reimburse the Borough of Totowa for past housing activities.
(3)
At least 30% of all development fees collected and interest earned on such fees shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the Municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of the median income for Housing Region 1, in which Totowa is located.
(a)
Affordability assistance programs may include downpayment assistance, security deposit assistance, low-interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs. The specific programs to be used for affordability assistance shall be identified and described within the spending plan.
(b)
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the Municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The specific programs to be used for very-low-income affordability assistance shall be identified and described within the spending plan.
(c)
Payments in lieu of constructing affordable housing units on site, if permitted by ordinance or by agreement with the Borough of Totowa, and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
(4)
The Borough of Totowa may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including its programs for affordability assistance.
(5)
No more than 20% of all revenues collected from development fees may be expended on administration, including but not limited to salaries and benefits for municipal employees or consultants' fees necessary to develop or implement a new construction program, prepare a Housing Element and Fair Share Plan, and/or administer an affirmative marketing program or a rehabilitation program.
(a)
In the case of a rehabilitation program, the administrative costs of the rehabilitation program shall be included as part of the 20% of collected development fees that may be expended on administration.
(b)
Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or actions are not eligible uses of the Affordable Housing Trust Fund.
I.
Monitoring. The Borough of Totowa shall provide annual reporting of Affordable Housing Trust Fund activity to the New Jersey Department of Community Affairs, COAH or Local Government Services or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center using forms developed for this purpose by the New Jersey Department of Community Affairs, COAH or Local Government Services, or forms approved by the Special Master.
J.
Ongoing collection of fees.
(1)
The ability for the Borough of Totowa to impose, collect and expend development fees shall be permitted through the expiration of the repose period covered by its judgment of compliance and shall continue thereafter so long as the Borough of Totowa has filed an adopted Housing Element and Fair Share Plan with the court or with a designated state administrative agency, has petitioned for a judgment of compliance from the court or for substantive certification or its equivalent from a state administrative agency authorized to approve and administer municipal affordable housing compliance and has received approval of its Development Fee Ordinance from the entity that will be reviewing and approving the Housing Element and Fair Share Plan.
(2)
If the Borough of Totowa is not pursuing authorization to impose and collect development fees after the expiration of its judgment of compliance, it may be subject to forfeiture of any or all funds remaining within its Affordable Housing Trust Fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320).
(3)
After the expiration of the judgment of compliance, if the Borough does not pursue or obtain continued authorization, the Borough of Totowa shall not impose a residential development fee on a development that receives preliminary or final site plan approval, retroactively impose a development fee on such a development, or expend any of its collected development fees.