It is the purpose of the Borough in adopting this chapter to exercise to the fullest the powers granted to the Borough by the State of New Jersey to manage land use through zoning, subdivision and site plan control, and through the police power generally. It is the further purpose of the Borough in adopting this chapter to organize and codify all such powers of land use management into one comprehensive, cohesive system in order to facilitate the administration of land use procedure, while providing maximum protection of the public health, safety and general welfare, in accordance with the provisions of N.J.S.A. 40:55D-2 et seq.

It is the intent and purpose of this chapter to:

Pursuant to the provisions of N.J.S.A. 40:55D-2 et seq., the Borough of Westwood Planning Board shall be comprised of nine members, consisting of the following four classes:

If the Planning Board lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-23 or N.J.S.A. 40:55D-23.1 from acting on a matter due to the member's personal or financial interests therein, regular members of the Board of Adjustment shall be called upon to serve, for that matter only, as temporary members of the Planning Board, in order of seniority of continuous service to the Board of Adjustment, until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between regular members of equal seniority, the Chairman of the Board of Adjustment shall make the choice.[2]

The term of the member composing Class I shall correspond with his official tenure, or if the member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's official tenure. The term of the member composing Class II shall be for one year or shall terminate at the completion of his first term of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or shall terminate at the completion of his term of office as a member of the Environmental Commission, whichever occurs first.[1]

The term of the member composing Class III shall be for one year or shall terminate at the completion of his term of office, whichever occurs first.

The term of a Class IV member who is also a member of the Board of Adjustment or Board of Education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first.

The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed evenly over the first four years after their appointment as determined by resolution of the Governing Body; provided, however, that no term of any member shall exceed four years, and further provided that nothing herein shall affect the terms of any present members of the Planning Board, all of whom shall continue in office until the completion of the terms for which they were appointed. Thereafter, all Class IV members shall be appointed for terms of four years except as otherwise hereinabove provided. All terms shall run from January 1 of the year in which the appointment is made.

Any member other than a Class I member, after a public hearing if he requests one, may be removed by the Council for cause.

No member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.

To make and adopt and from time to time amend a Master Plan for the physical development of the Borough, including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the planning of the Borough, in accordance with the provisions of N.J.S.A. 40:55D-28.

To approve conditional use applications as authorized by state statute.

To administer the provisions of the Land Use and Development Ordinance of the Borough in accordance with the provisions of this chapter and the Municipal Land Use Law of 1975, N.J.S.A. 40:55D-1 et seq.

To participate in the preparation and review of programs or plans required by state or federal law or regulations.

To assemble data on a continuing basis as part of a continuing planning process.

To review and make recommendations to the Council on the Official Map of the Borough pursuant to N.J.S.A. 40:55D-32 and N.J.S.A. 40:55D-26.

To annually prepare a program of municipal capital improvement projects over a term of six years, and amendments thereto, and recommend same to the Governing Body.

To consider and make reports to the Governing Body within 35 days after referral as to any proposed development regulation submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26a, and also pass upon other matters specifically referred to the Planning Board by the Borough Council pursuant to the provisions of N.J.S.A. 40:55D-26b.

When reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment, a variance pursuant to N.J.S.A. 40:55D-70c, and to direct the issuance of a permit for a building or structure either not related to a street (N.J.S.A. 40:55D-36) or in the bed of a mapped street or public drainageway, flood-control basin or public area reserved on the Official Map (N.J.S.A. 40:55D-32). Whenever relief is requested pursuant to this subsection, notice of a hearing on the application for development shall include reference to the request for a variance or direction for issuance of a permit, as the case may be.

To perform such other advisory duties as are assigned to it by ordinance or resolution of the Governing Body or other agencies or officers.

Minor subdivisions. Minor subdivision approvals shall be granted or denied within 45 days of the date of submission of a complete application to the Planning Board or within such further time as may be consented to by the applicant. Approval of a minor subdivision shall expire 190 days from the date of Planning Board approval unless, within such period, a plat in conformity with such approval and the provisions of the Map Filing Law,[1] or a deed clearly describing the approved minor subdivision, is filed by the developer with the County Recording Officer, the Municipal Engineer and the Municipal Tax Assessor. Any such plat or deed must be signed by the Chairman and Secretary of the Planning Board before it will be accepted for filing by the County Recording Officer.

Preliminary approval of major subdivisions. Upon submission of a complete application for a subdivision of 10 or fewer lots, the Planning Board shall grant or deny preliminary approval within 45 days of the date of such submission or within such further time as may be consented to by the developer. Upon submission of a complete application for a subdivision of more than 10 lots, the Planning Board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the Planning Board shall be deemed to have granted preliminary approval for the subdivision.

Ancillary powers. Whenever the Planning Board is called upon to exercise its ancillary powers before the granting of a variance as set forth in § 195-10I, the Planning Board shall grant or deny approval of the application within 95 days after the submission by the developer of a complete application or within such further time as may be consented to by the applicant. Failure of the Planning Board to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the Planning Board to act shall be issued on request of the applicant.

Final approval. Application for final subdivision approval shall be granted or denied within 45 days of submission of a complete application or within such further time as may be consented to by the applicant. Final approval of a major subdivision shall expire 95 days from the date of the signing of the plat unless, within such period, the plat shall have been duly filed by the developer with the County Recording Officer. The Planning Board may, for good cause shown, extend the period for recording for an additional period not to exceed 190 days from the date of the signing of the plat.

Variances.

There shall be two alternate members of the Planning Board appointed by the Mayor and meeting the qualifications of Class IV members of nine-member Planning Boards. The alternate members shall be designated at the time of appointment by the Mayor as "Alternate No. 1" and "Alternate No. 2." The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. Notwithstanding the aforesaid, the initial terms of the members shall be arranged so as to accomplish the intent of this section. A vacancy occurring otherwise than by expiration of term shall be filled by the Mayor for the unexpired term only.

No alternate member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. An alternate member may, after public hearing if he requests one, be removed by the Borough Council for cause.

The alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.

A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven regular members and two alternate members, appointed by the Borough Council. The regular members shall serve for terms of four years from January 1 of the year of their appointment. The terms of the members first appointed shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial term of no member shall exceed four years. Nothing in this chapter shall, however, be construed to affect the terms of any present members of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the terms for which they were appointed.

No member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.

A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.

If the Board of Adjustment lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the member's personal or financial interest therein, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary members of the Board of Adjustment. The Class IV members of the Planning Board shall be called upon to serve, in order of seniority of continuous service to the Planning Board, until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between Class IV members of equal seniority, the Chairman of the Planning Board shall make the choice.[1]

There shall be two alternate members of the Board of Adjustment appointed by the Borough Council. The alternate members shall be designated at the time of appointment as "Alternate No. 1" and "Alternate No. 2." The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. Notwithstanding the aforesaid, the initial terms of the members shall be arranged so as to accomplish the intent of this section.

The alternate members may participate in discussion proceedings but may not vote except in the absence or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.

A member may, after public hearing if he requests it, be removed by the Council for cause.

No member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.

The powers of the Zoning Board of Adjustment shall be in accordance with N.J.S.A. 40:55D-69 et seq., and amendments and supplements thereto, and with the provisions of this chapter.

It is further the intent of this chapter to confer upon the Zoning Board of Adjustment as full and complete powers as may lawfully be conferred upon such Board, including, not by way of limitation, the authority, in connection with any case, action or proceeding before the Board, to interpret and construe the provisions of this chapter, or any term, clause, sentence or word hereof, and the Zoning Map, in accordance with the general rules of construction applicable to legislative enactments.

The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of this chapter in accordance with the general or specific rules contained herein and with the general rules hereby laid down so that equity shall be done in cases where the strict construction of the provisions of this chapter would work undue hardship. The powers and duties of the Board shall in all cases follow the provisions applicable to it in said P.L. 1975, c 291,[1] or subsequent statutes in such case made and provided, and it shall from time to time furnish to any person requesting the same a copy of its rules and information as to how appeals for applications may properly be filed with the Board for its decision thereon.

Appeals to the Board of Adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the municipality affected by any decision of the administrative officer. Each appeal shall be taken within the 45 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal was taken, together with 21 copies of said notice with the Secretary of the Board of Adjustment. Said notice of appeal shall specify the grounds of said appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

Applications addressed to the original jurisdiction of the Board of Adjustment without prior application to an administrative officer shall be filed with the Secretary of the Zoning Board of Adjustment. The applicant shall complete all portions of the application form and, along with one copy of a plan, file with the Board of Adjustment Secretary no later than 45 days prior to the date set for the hearing. This initial application will be reviewed and returned with notations and/or suggestions for the applicant to prepare the final application. Within 15 days of the scheduled meeting, the following material must be submitted to the Board of Adjustment Secretary: 21 copies of the application, all plot plans, maps and other papers required by virtue of any provision of this chapter or any rule of the Board of Adjustment. The Secretary of the Board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board. The submission of an application for either preliminary or final approval shall be accompanied by a completed application form and the appropriate completed checklist as adopted as part of this chapter. (See Appendix A.[1])[2]

An appeal stays all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the officer from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal shall have been filed with him that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order of the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.

The Board of Adjustment shall have such powers as are granted by law to:

No variance or other relief may be granted under the provisions of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and this chapter. Any application under any subsection of this section may be referred to any appropriate person or agency, including the Planning Board, for its report, provided that such references shall not extend the period of time within which the Zoning Board of Adjustment shall act.

The Zoning Board of Adjustment shall, in addition to the powers specified in § 195-26 of this chapter, have power given by law to:

The Board of Adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to Article 6 of P.L. 1975, c. 291,[1] or conditional use approval pursuant to N.J.S.A. 40:55D-67, whenever the Board is reviewing an application for approval of a use variance pursuant to Article III, § 195-26A(3)(b), of this chapter.

Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.

Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which meetings shall be held on notice to the Board's members and the public in accordance with all applicable legal requirements.

No action shall be taken at any meeting without a quorum being present.

All actions shall be taken by majority vote of a quorum except as otherwise required by any provision of P.L. 1975, c. 291.[1]

All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Law, P.L. 1975, c. 231.[2] An executive session for the purpose of discussing and studying any matters to come before either Board shall not be deemed a regular or special meeting in accordance with the provisions of N.J.S.A. 40:55D-9.

Rules. The Planning Board and Zoning Board of Adjustment may make rules governing the conduct of hearings before such bodies, which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.

Oaths. The officer presiding at the hearing or such person as he may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.), shall apply.

Testimony. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right to cross-examine 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.

Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.

Records. Each Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense.

Public 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 the hearing.

Notice shall be given to the owners of all real property, as shown on the current tax duplicate or duplicates, located within 200 feet in all directions of the property which is the subject of such hearing, provided that this requirement shall be deemed satisfied by notice to a condominium association, in the case of any unit owner whose unit has a unit above or below it, or a horizontal property regime, in the case of a co-owner whose apartment has an apartment above or below it. Such notice shall be given by either serving a copy thereof on the owner as shown on the said current tax duplicate or his agent in charge of the property or by mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate. 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 shall be given to the Borough of Westwood Police Department, Fire Department, Board of Health, Parking Utility, Historic Preservation Commission and Shade Tree Committee.

Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality.

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 situate within 200 feet of a municipal boundary.

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.

Notice shall be given, by personal service or certified mail, to the Director of the Division of State and Regional Planning in the Department of Community Affairs of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk pursuant to N.J.S.A. 40:55D-10b.

Notice shall be given, by personal service or certified mail, of a hearing on an application of a major subdivision or a site plan not defined as a minor site plan to a public utility, cable television company or local utility which possesses a right-of-way or easement within the municipality and has registered with the municipality in accordance with N.J.S.A. 40:55D-12.1.

All notices hereinabove specified in this section shall be given at least 10 days prior to the date fixed for hearing, and the applicant shall file an affidavit of proof of service with the Board holding the hearing on the application for development.

Any notice made by certified mail as hereinabove required shall be deemed complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.

Form of notice. All notices required to be given pursuant to the terms of this chapter shall state:

Notice regarding Master Plan. The Planning Board shall give:

Notice of hearing on ordinance or capital improvement program. Notice of action on a capital improvement or the Official Map shall be made as follows:

Each decision on any application for development shall be set forth in writing as a resolution of the Board, which resolution shall include findings of fact and legal conclusions based thereon. The memorializing resolution shall be adopted at a meeting held not later than 60 days after the date of the meeting at which the approving authority voted to grant or deny the application.

Prior to a resolution of approval being memorialized, the applicant shall present 12 sets of plans which indicate any and all changes required by the Board at the time of approval.

A copy of the decision shall be mailed by the Board, within 10 days of the date of decision, to the applicant or, if represented, to his attorney, without separate charge. A copy of the decision shall also be mailed to all persons who have requested it and have paid the fee prescribed by the Board for such service. A copy of the decision shall also be filed in the office of the Municipal Clerk, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the municipality.

Purpose. The purpose of this section is to establish a uniform process for reviewing and approving minor modifications to previously approved development applications consistent with N.J.S.A. 40:55D-38(e).

Definitions.

Application procedure. An applicant seeking a minor modification shall submit a written request to the Board Secretary, including a narrative description of the proposed change, supporting documentation, and any relevant plans or product cut sheets. The request shall be submitted at least 14 days prior to the next regularly scheduled meeting.

Fees. The Minor Modifications to Approved Development Plan Fees are as follows:

Board review. At the next regularly scheduled meeting, the Board shall review the request and determine, by majority vote, whether the proposed change constitutes a Minor Modification or requires a formal amended approval application.

Effect of determination. If the Board determines the change is a Minor Modification, no further application shall be required and the modification may be implemented. If the Board determines the change is not minor, the applicant must file a formal amended application.

Severability. If any provision of this section is held invalid, such invalidity shall not affect other provisions that can be given effect without the invalid provision, and to this end the provisions of this section are declared severable.

Effective date. This section shall take effect immediately upon final passage and publication as required by law.

Administrative officer: receiving applications for development; issuing approval certificates. The administrative officer, for the purpose of the enforcement of this chapter, shall be the Zoning Officer, who is hereby given the duty, power and authority to respectively enforce the provisions of this chapter under the applicable powers and authority as provided by law. The Zoning Officer shall examine all applications under his jurisdiction and shall approve all required inspections to ensure compliance with this chapter.

Administration.

Enforcement. The rules, regulations and standards contained in this chapter shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Borough. Any action taken by the Borough under the terms of this chapter shall give primary consideration to the purposes and provisions of this chapter and to the welfare of the entire community. Moreover, if an applicant or his agent can clearly demonstrate that, because of the peculiar conditions pertaining to his land, the literal enforcement of one or more of these regulations is impractical or will exact undue hardship, the appropriate municipal agency may permit such exceptions or exceptions as may be reasonable and within the general purpose and intent of the rules, regulations and standards established by this chapter.

It shall be the duty of the Zoning Officer to administer and enforce the provisions of this chapter and, in so doing, to inspect periodically the structures and land in the Borough, to investigate violations of this chapter coming to his attention, to serve notice upon property owners to abate any condition found to exist in violation of any provision(s) of this chapter, to sign complaints where justified and to cooperate with other Borough officials in the prosecution of violators. The enumeration herein of the duties of the Construction Official and the Zoning Officer shall not mean that other officials and employees shall be relieved of their obligation to enforce this chapter. The Construction Official and the Zoning Officer, or other Borough employees authorized by the Borough, shall have the right to inspect any lot or building at reasonable times for the purpose of investigating possible violations of this chapter.

If the Zoning Officer finds any substantial deviation from any approved plans, he shall notify the permittee and the Borough Clerk, in writing, of the deviation. The Zoning Officer and the Borough may take such action as is provided in this chapter.

A zoning compliance certificate (permit/approved application) shall be required as a condition precedent to the commencement of a use (in accordance with Subsection C) or the erection, construction, reconstruction, alteration, conversion or installation of a building or structure, certifying that such use, building or structure complies with the provisions of this chapter. Structures for the purpose of this section shall include, among other items, site improvements, such as driveways, walls, fences and any impervious coverage. No sign erection permit shall be issued by the Construction Official except upon application therefor in conformity with this chapter.

Certificates of occupancy.

Zoning compliance certificate.

Stop orders. In the event that a permittee shall fail to comply with any condition or regulation or provisions of an approved plan, the Construction Official may issue a stop order on all construction work within the area encompassed by the approved plan, which order may include requirements for the prompt correction of adverse conditions. Thereafter, no construction work of any type shall be performed within the area of the approved plan except such work as is in accordance with the requirements of the Construction Official as set forth in said order or in accordance with the approved plan.[1]

Permit revocation. In the event of a failure to comply with any condition of an approved soil erosion and sediment control plan or tree removal plan, upon recommendation of the Borough Engineer, the Borough may revoke any construction permit for any property upon which such noncompliance occurs or for any property affected by such noncompliance. The Borough may also seek to enjoin the violation or take such other steps as permitted by law.

Revocation of construction permit or certificate of occupancy. In the event of a failure to comply with any condition of final site plan approval, the Construction Official, on his or her initiative, may revoke the construction permit or certificate of occupancy, as the case may be, and seek to enjoin the violation or take such other steps as permitted by law.

General. Any person aggrieved by any decision or action of the Zoning Officer or the Borough Engineer under this chapter may appeal to the Borough Council, in writing, such appeal to be filed with the Borough Clerk within 10 days from the date of the decision or action complained of. The appellant shall be entitled to a hearing before the Borough Council, which shall fix a date therefor not less than 20 days nor more than 30 days from the date of the decision appealed from. Upon such hearing or within 10 days thereafter, the Borough Council shall affirm, alter or rescind the decision or action complained of with written findings and conclusions.

Appeal. Where the Construction Official or the Borough Engineer has issued a stop order or has revoked a construction permit, the permittee shall have a right to appeal the determination to the Bergen County Construction Board of Appeals when the appeal involves a matter under the jurisdiction of the Uniform Construction Code.[1] Said notice of appeal shall be filed in accordance with the requirements of said Board. If the subject matter of the appeal is other than a Uniform Construction Code matter, then the permittee shall have a right to appeal the determination to the Borough Council. Said notice of appeal shall be filed with the Borough Clerk within 10 calendar days of the date of the action of the Borough Engineer in issuing the stop-work order. The Borough Council shall, upon receipt of said notification, provide a hearing to the permittee within 10 days of the date of the filing of the appeal and shall render its decision upon the conclusion of the hearing and in no case later than seven days from termination of the hearing.

Any person who violates any of the provisions of this chapter, or who fails to comply with any of the requirements thereof, or who erects, raises, moves, extends, enlarges, alters or demolishes any structure in violation of any detailed statement or plan submitted hereunder, or who puts into use any lot or premises in violation of any detailed statement or plans submitted hereunder or who refuses reasonable opportunity to inspect any premises shall, upon conviction thereof by any court authorized by law to hear and determine the matter, be liable to one or more of the following: a fine of not more than $2,000, or imprisonment for a term of not more than 90 days, or a period of community service not to exceed 90 days, as such court in its discretion may impose. Each day during or on which a violation occurs or continues shall be deemed a separate offense.[1]

Selling land before final subdivision approval.

General.

Inspection fees.

Initial deposits for professional services. The required escrow fees shall be collected by the Borough's Finance Office at the time of the filing of the application. It shall be the responsibility of the Finance Office to assign and issue all escrow account numbers at the time of filing an application. These fees are to be applied for the review of applications by the professional staff/consultants and shall include all office review, phone correspondence, preparation of reports, conferences, appearance at meetings, or other purposes under the provisions of this chapter or the Municipal Land Use Law.[1] For purposes of this section, "professional staff" shall include the Borough Planner and Borough Engineer, and such other professionals as may be deemed necessary by the Planning Board or the Zoning Board of Adjustment to review an application. Deposits shall be paid by personal check, certified check, cashier's check, or bank money order. In the case of proposals requiring a combination of approvals, such as a subdivision, site plan and/or variance(s), the applicant shall deposit an amount equal to the sum of the deposits required for each application.

Inspection fees. In addition to the fees set forth for the review of subdivision plans and site plans, there shall also be an inspection fee of 2.5% of the estimated cost of improvements on site plans and an inspection fee of 5% of the estimated cost of the improvements for subdivisions, as estimated by the Borough Engineer and payable at the time of the commencement of construction. This charge shall be for the purpose of defraying the costs of inspections of the installation of the improvements required by the Planning Board. In the event that there is no new schedule of fees filed by the professionals, the schedule previously filed by the professional shall prevail.[2]

Subsequent deposits for professional services. In the event that the amount in the individual account for professional services should become depleted to less than 25% of the initial deposit required by this chapter, and if the Secretary determines that additional funds are necessary to cover the cost of processing said application, the Secretary shall notify the applicant immediately of such depletion. Upon receiving such notice, the applicant shall deposit additional funds as necessary to make the amount in the account not less than 50% of the initial deposit required by this chapter for professional services.

Failure to maintain deposit for professional services. If the required funds for professional services are not deposited in a timely manner, the Secretary shall notify the Borough agency having jurisdiction over the application and shall send copies of said notification to the Borough Finance Director. Upon receipt of the copy of notification, the Finance Officer shall immediately inform the Mayor and Council of said notification. No further action shall be taken on the application unless the deposits have been made by the applicant as required above. In the event that the time for action by a Borough agency as required by this chapter shall expire prior to the payment of the required deposits, the reviewing agency shall have the option of dismissing the application.

Vouchers for payment of professional services. All payments charged to a deposit required by this section shall be made pursuant to written monthly vouchers for each application from the professional(s), stating the hours spent, the hourly rate and the expenses incurred. The Borough shall render a written final accounting to the applicant on the uses to which the deposit was put.

Procedure for payment of vouchers; appeals of charges. The following procedure shall apply to the payment of vouchers for professional services pursuant to this section:

Before execution of the final subdivision plat, as a condition of final site plan approval, or as a condition to the granting of a development approval pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall have installed all improvements required by the Planning Board, except that the Borough Council may require and shall accept, in accordance with the standards adopted herein for the purpose of assuring the installation and maintenance of on-tract improvements, the following:

There shall be provision for a maintenance guarantee, to be posted with the Borough Council for a period not to exceed two years after final acceptance of the improvements, in an amount not to exceed 15% of the cost of the improvements.

The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of installation as determined as of the time of the passage of the resolution.

If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable cost of the improvements not completed or corrected, and the Borough may, either prior to or after the receipt of the proceeds thereof, complete such improvements.

Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the Borough Council, in writing, by certified mail, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactory completed improvements. A copy of the request shall be sent to the Borough Engineer. The request shall indicate which improvements remain uncompleted in the judgment of the obligor. Thereupon the Borough Engineer shall inspect all improvements covered by the request and shall file a written list and report with the Borough Council, with a copy to the obligor, not later than 45 days after the receipt of the obligor's request.

The list prepared by the Borough Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report shall also identify each improvement determined to be complete and satisfactory, together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section.

The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of these improvements, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

In the event that the obligor has made a cash deposit with the Borough or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements, and, upon completion or correction, the same procedure of notification as set forth in this section shall be followed.

Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination or lack of a determination of the Borough Council or the Borough Engineer.

The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements, provided that the Borough may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees. For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

In the event that final approval is by stages or sections of development pursuant to Subsection (a) of Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.

To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Borough Engineer.

Building permits in a subdivision or site plan or approved subsection thereof, except for model buildings in the first subsection, will be issued only when all improvements, with the exception of the following, shall have been installed to serve all lots and structures within the subdivision or site plan, or approved subsection thereof, and approved by the Borough Engineer:

Permits for model buildings in the front subsection or 10% of the total number to be built in said subsection, whichever is less, not to exceed six, may be issued on commencement of construction of improvements.

Installation of sidewalks on a lot shall be completed prior to the issuance of a certificate of occupancy for that lot.

Notwithstanding any provision of this chapter to the contrary, upon completion of all improvements, but prior to acceptance by the Borough Council of such improvements, and prior to the release of any performance guarantee which may have been posted, deeds must be received, free and clear of all mortgages and encumbrances, for all fee and other property interests and improvements to be conveyed to the Borough.

A site plan bond shall be posted prior to earth disturbance.

Whenever a land use approval is granted which includes construction within, or disturbance of, the public right-of-way or any publicly owned infrastructure, or where the proposed on-site construction activities have the potential for an adverse impact upon adjacent lands or the creation of a nuisance on the subject property, the developer shall be obligated to enter into a developer's agreement between the developer and the Mayor and Council, which agreement shall be prepared, at the applicant's expense, by the Borough Attorney. Prior to preparation of the developer's agreement, the applicant shall post a deposit of $1,000 in escrow with the Borough of Westwood to defray the initial expense of same. At or prior to the execution of said agreement, or sooner in complex matters, the developer shall pay an additional amount into the escrow fund to defray expenses incurred by the Borough of Westwood. Such funds shall be administered in accordance with the Municipal Land Use Law.[1]

In addition to the amounts required to be deposited for a developer's agreement, the developer shall also post estimated fees for inspections of improvements by the Borough Engineer in accordance with N.J.S.A. 40:55D-53 et seq. The amount requested for inspection escrow fees shall be an estimate based upon 5% of the cost of site improvements, both on site and within the municipal right-of-way, but exclusive of any building construction. For those developments for which the inspection fees are less than $10,000, the fees may be paid in two installments. For those developments for which the inspection fees are $10,000 or greater, fees may be paid in four installments. Administration and replenishment of the inspection escrow account shall be as set forth in N.J.S.A. 40:55D-53, Subsection h, and as provided for in N.J.S.A. 40:55D-53.1 through N.J.S.A. 40:55D-53.4.

Pursuant to the powers established in N.J.S.A. 40:55D-42, the following standards are hereby promulgated with respect to determining the proportionate or pro rata share of an applicant for a required off-tract improvement. Prior to the granting of final approval of a subdivision, the applicant shall have installed or made cash payments, in the manner provided for below, with respect to the immediate or ultimate installation of any required off-tract improvement.

Omissions. Omissions from the bond of any improvement will in no way be construed as to relieve the developer from his legal obligation to conform to the required improvements as provided for in this chapter.

Certification. Prior to the final acceptance of any of the required improvements by the Borough, the subdivision owner or owners shall have submitted satisfactory affidavits certifying that no unpaid bills, liabilities or liens against such improvements and installations are outstanding.

In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH) adoption of rules.

Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2), and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through N.J.S.A. 40:55D-8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.

This article establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32 through 38.[1] Fees collected pursuant to this article shall be used for the sole purpose of providing low- and moderate-income housing. This article shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.

This article shall not be effective until approved by COAH pursuant to N.J.A.C. 5:96-5.1.

The Borough of Westwood shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.

Imposed fees.

Eligible exactions, ineligible exactions and exemptions for residential development.

Imposed fees.

Eligible exactions, ineligible exactions and exemptions for nonresidential development.

Upon the granting of a preliminary, final or other applicable approval for a development, the applicable approving authority shall direct its staff to notify the Construction Official responsible for the issuance of a building permit.

For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF, "State of New Jersey Nonresidential 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 Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.

The Construction Official responsible for the issuance of a building permit shall notify the local Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.

Within 90 days of receipt of that notice, the Municipal Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.

The Construction Official responsible for the issuance of a final certificate of occupancy shall notify the local Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.

Within 10 business days of a request for the scheduling of a final inspection, the Municipal Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development, calculate the development fee, and thereafter notify the developer of the amount of the fee.

Should the Borough of Westwood 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).

Fifty percent of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the issuance of the building permit and that determined at the issuance of the certificate of occupancy.

Appeal of development fees.

There is hereby created a separate, interest-bearing housing trust fund, to be maintained by the Chief Financial Officer, for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.

The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

Within seven days from the opening of the trust fund account, the Borough of Westwood shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the bank and COAH, to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).

All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.

The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the Borough of Westwood'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, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market-to-affordable, or 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, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 5:97-8.9 and specified in the approved spending plan.

Funds shall not be expended to reimburse the Borough of Westwood for past housing activities.

At least 30% of all development fees collected and interest earned 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 median income by region.

The Borough of Westwood may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:96-18.

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 consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the Affordable Housing Trust Fund.