§ 26-12. PROVISIONS APPLICABLE TO BOTH PLANNING BOARD AND ZONING BOARD OF ADJUSTMENT.

26-12.1 Meetings.

a.

Meeting Schedule. Meetings of both the Planning Board and Board of Adjustment shall be scheduled no less often than once a month and shall be held as scheduled unless canceled for lack of pending applications. Each Board may, in its discretion, eliminate one (1) meeting during the summer months.

b.

Special Meetings. Special meetings may be held at the call of the Chairperson or at the request of any two (2) Board members. Board members shall be given at least seventy-two (72) hours advance telephone notice of a special meeting. The public shall be given notice of such meeting in accordance with the Open Public Meetings Act and, if applicable, MLUL requirements.

c.

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

d.

Voting Requirements. All action shall be taken by majority vote of the members of the respective Board present at the meeting except as otherwise required by the provisions of N.J.S.A. 40:55D-34 and/or 70d. Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application. A member of the Board who was absent for one (1) or more of the meetings at which a hearing was held shall be eligible to vote on a matter upon which the hearing was conducted, notwithstanding the absence from one (1) or more of the meetings; provided, however, that a transcript or recording of all of the hearing from which he/she was absent exists, and provided, further, that such Board member certifies in writing to the Board that he/she has read such transcript or listened to such recording.

e.

Meetings Open to Public. All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Act.

f.

Minutes. Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney, the action taken by the Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Board Secretary. 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 his or her use. Such fees may be established by rule by each Board.

g.

Minutes of Closed Meetings. At least once a year, each Board shall review the minutes of all closed meetings held in conformance with the Open Public Meetings Act to determine whether the minutes may be made public.

(Ord. #647-99)

26-12.2 Public Hearings.

a.

Requirement For Hearing. The Planning Board or Board of Adjustment shall hold a hearing on each application for development or on the adoption, revision or amendment of the Master Plan. Each Board shall make rules governing such hearings.

b.

Maps To Be Available For Public Inspection. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least ten (10) days before the date of the hearing during normal business hours in the office of the Board Secretary. The applicant may produce other documents, records or testimony at the hearing to substantiate, clarify or supplement the previously filed maps and documents.

c.

Payment of Taxes. Every application for development submitted to the Planning Board or to the Board of Adjustment shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of such application, or, if it is shown that taxes or assessments are delinquent on said property, any approvals or other relief granted by either Board shall be conditioned upon either the prompt payment of such taxes or assessments or the making of adequate provision for the payment thereof in such manner that the Borough will be adequately protected.

d.

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

e.

Testimony and Cross Examination. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer or attorney for the Board, 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.

f.

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

g.

Record of Proceedings. The Board shall provide for the verbatim recording of the proceedings by either a stenographer or 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. Fees for such expenses shall be established by rules of the Board.

h.

Decisions:

1.

Resolutions. The Board shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The Board shall provide the findings and conclusions through:

(a)

A resolution adopted at a meeting held within the time period provided in the MLUL for action by the Board on the application for development; or

(b)

A memorializing resolution adopted at a meeting held not later than forty-five (45) days after the date of the meeting at which the Board voted to grant or deny approval. Only the members of the Board 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. An action pursuant to N.J.S.A. 40:SSD-9 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 Board and not to be an action of the Board; 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 this subsection h. If the Board 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 Board 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.

2.

Copies of Decision. A copy of the decision shall be mailed by the Board within ten (10) days of the date of decision to the applicant or if represented then to his or her attorney, without separate charge, and to all who request a copy of the decision for a reasonable fee. A copy of the decision shall also be filed by the Board in the office of the Board Secretary. The Board Secretary shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at his or her office during reasonable hours.

3.

Publication of Notice of Decision. A brief notice of the decision shall be published in the official newspaper of the municipality. Such publication shall be arranged at the applicant's expense by the Secretary of the Board, provided that nothing contained in this chapter shall be construed as preventing the applicant from arranging such publication if he or she so desires. The 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 Board or the applicant.

(Ord. #637-99)

26-12.3 Notice of Applications.

a.

Applications Requiring Notice. Public notice of a hearing on an application for development shall be given, except for:

1.

Minor site plan applications pursuant to subsection 26-67.3 of this chapter;

2.

Minor subdivisions pursuant to subsection 26-67.1 et seq. of this chapter;

3.

Final approval of site plans and/or major subdivisions pursuant to subsection 26-69.1 et seq. of this chapter;

4.

Notwithstanding the foregoing, public notice shall be given in the event that relief is requested pursuant to subsections 26-10.3, 26-11.2.a.3.4 and/or e of this chapter as part of an application for development otherwise excepted herein from public notice.

b.

Manner of Giving Notice. Notice of a hearing requiring public notice shall be given by the applicant at least ten (10) days prior to the date of the hearing in the following manner:

1.

To the general public, by publication in the official newspaper of the Borough;

2.

To all owners of real property as shown on the current tax duplicate, located in the state and within two hundred (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 or her agent in charge of the property or mailing a copy thereof by certified mail to the property owner at his or her 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 homeowner's association, because of its ownership of common elements or areas located within two hundred (200′) feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners or homeowners on account of such common elements or areas;

3.

To the Clerk of any adjoining municipality when the property involved is located within two hundred (200′) feet of said adjoining municipality. Notice shall be given by personal service or certified mail;

4.

To the County Planning Board when the application for development involves property adjacent to an existing county road or proposed road as shown on the County Official Map or the County Master Plan, adjoining other county land or situated within two hundred (200′) feet of a municipal boundary. Notice shall be given by personal service or certified mail;

5.

To the Commissioner of Transportation of the State of New Jersey when the property is adjacent to a state highway. Notice shall be given by personal service or certified mail;

6.

To the State Planning Commission when the hearing involves an application for the development of property which exceeds one hundred fifty (150) acres or five hundred (500) dwelling units, in which case the notice shall include a copy of any maps or documents required to be on file with the Board Secretary pursuant to subsection 26-12.2.b. above. Notice shall be given by personal service or certified mail;

7.

On applications for approval of a major subdivision or a site plan not defined as a minor site plan to all public utilities, cable television companies or local utilities which possess a right-of-way or easement within the Borough and which have registered with the Borough in accordance with N.J.S.A. 40:55D-12.1 by (1) serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility or (2) mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.

c.

List of Owners and Others. Upon the written request of an applicant, the Borough Tax Assessor shall, within seven (7) days, make and certify a list from current tax duplicates of names and address of owners within the Borough to whom the applicant is required to give notice pursuant to Subsection b.2. of this section and the names, addresses and positions of those persons who, not less seven (7) days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to subsection 26-12.4 below. Failure to give notice to any owner, public utility, cable television or local utility not on the list obtained in such manner shall not invalidate any hearing or proceeding. A sum, not to exceed twenty-five ($0.25) cents per name, or ten ($10.00) dollars, whichever is greater, shall be charged for such list.

d.

The applicant shall file an affidavit of proof of service with the Board holding the hearing, at least five (5) days prior to the scheduled meeting.

e.

Contents of Notice. The notice shall state the date, time and place of the hearing, the nature of the matters to be considered and an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Borough Tax Assessor's office; and the location and times at which any maps and documents for which approval is sought are available for inspection pursuant to subsection 26-12.2.b. above.

f.

Effect of Mailing. Any notice made by certified mail pursuant to subsection 26-12.3.b. shall be deemed complete upon mailing.

(Ord. #637-99)

26-12.4 Registration by Public Utilities, Cable Television Companies and Local Utilities.

a.

Right to Register. Every public utility, cable television company and local utility which holds a right-of-way or easement in the Borough and which is interested in receiving notice pursuant to subsection 26-12.3.b.7. above, may register with the Administrative Officer to receive such notice. The registration shall remain in effect until revoked by the public utility, cable television company, or local utility or by its successor in interest.

b.

Registration Fee. A registration fee of twenty ($20.00) dollars is required for any public utility, cable television company or local utility which registers to receive notice pursuant to this section.

(Ord. #637-99)

26-12.5 Conditional Approval.

a.

In the event that an applicant submits an application 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 Board shall process such application in accordance with this chapter, and if such application complies with all Borough regulations, the Board shall approve such application conditioned on removal of such legal barrier to development.

b.

In the event that development proposed by an application requires an approval by a governmental agency other than the Board, the Board shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency. The Board shall make a decision on any application within the time period provided in this chapter or within an extension of such period as has been agreed to by the applicant, unless the Board is prevented or relieved from so acting by the operation of law.

(Ord. 637-99)

26-12.6 Tolling of Running of Approval Period. In the event that, during the period of approval heretofore or hereafter granted to an application, 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, 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 shall be suspended for the period of time said legal action is pending or such directive or order is in effect.

(Ord. #637-99)

26-12.7 Time Extensions. The Board and an applicant may mutually agree to extend the time limit specified for action. Such extension shall be made in writing or verbally at a public meeting of the Board.

(Ord. 637-99)

26-12.8 Expiration of Variance. Any variance from the terms of this chapter hereafter granted by either Board permitting the erection or alteration of any structure or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance, or unless such specified use has actually been commenced, within two (2) years from the date of publication of the notice of the decision of the Board granting the variance, except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Board to the governing body or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.

(Ord. #637-99)