§ 26-104. OFF-TRACT IMPROVEMENTS.

26-104.1 Compliance with Provisions; Performance Guarantees. Where the need for off-tract improvements is in whole or in part made necessary by the application of the developer and the installation of the improvements would confer a benefit upon the development, a determination of the contribution of the developer for the off-tract improvements shall be made in accordance with the provisions as hereinafter set forth, and the performance of the work or the posting of adequate performance guarantees to ensure installation of the required off-tract improvements shall be made by the developer.

(Ord. #637-99)

26-104.2 Recommendation and Report. Where the Board has determined the necessity of an off-tract improvement, it shall forward its recommendation, together with the estimated cost of the off-tract improvement, to the Borough Council. The estimated cost of the off-tract improvement shall set forth an estimate by which all properties to be serviced thereby, including the developer's property, shall be benefited. Upon receipt of the recommendation and report of the Board, the Borough Council shall, within thirty (30) days from the date of receipt thereof, make a determination. If the Borough Council, by resolution, concurs with the recommendation of the Board in whole or in part, it shall notify the Planning Board of its recommendation, and the Board shall then, with the aid of the Borough Engineer or such other persons who have pertinent information or expertise, calculate the cost of the improvement and the amount by which all properties to be serviced thereby, including the subdivider's property, will be benefited.

(Ord. #637-99)

26-104.3 Manner of Construction. Upon completion of the Board studies with respect to the cost of the improvement and special benefits to be conferred, these reports shall be forwarded to the Borough Council and a determination made by the Borough Council as to whether the off-tract improvement is to be constructed:

a.

By the Borough as a general improvement;

b.

By the Borough as a local improvement;

c.

By the developer under a formula providing for partial reimbursement by the Borough for benefits to properties other than the development;

d.

By the developer under a formula providing for partial reimbursement by other private parties (developer, property owner) for benefits to properties other than the development.

(Ord. #637-99)

26-104.4 Amount of Contribution. When this has been determined, the developer may be required to provide, as a condition for final approval of the development, a bond or a cash deposit to ensure payment to the Borough of one (1) of the following amounts:

a.

If the improvement is to be constructed by the Borough as a general improvement, an amount equal to the difference between the estimated cost of the improvement and the estimated total amount, if less, by which all properties to be served thereby, including the developer's property, will be specially benefited by the off-tract improvement.

b.

If the improvement is to be constructed by the Borough as a local improvement, the estimated amount by which the subdivision will be specially benefited by the off-tract improvement.

c.

If the improvement is to be constructed by the developer, an amount equal to the estimated cost of the off-tract improvements, less an offset for benefits to properties other than the development.

(Ord. #637-99)

26-104.5 Determination of Special Benefits. In determining benefits conferred to properties specially benefited by an off-tract improvement, the following formula shall, subject to adjustment for peculiar or exceptional conditions, be used:

a.

The development shall be allocated that percentage of one hundred (100) computed by dividing the development land area by the total land area benefited by the off-tract development.

b.

The development shall be allotted that percentage of one hundred (100) computed by dividing the maximum potential intensity of use of the development (total square feet of building floor area) by the maximum potential intensity of use under existing zoning limitations in the total land area benefited by the off-tract improvement.

c.

In the case of linear improvements, i.e., roads, curbing, sidewalks, pipes, drains, sewers, drainage easements, etc., the development shall be allotted that percentage of one hundred (100) computed by dividing the distance (measured along the course of the off-tract improvement) from the connecting facility to the farthest abutting point of the subdivision by the sum of the distance of all intervening properties, including the developments abutting the off-tract improvements which shall be apportioned to the developer.

(Ord. #637-99)

26-104.6 When Required. The requirement of appropriate off-tract improvements and the apportionment of the cost of a portion thereof to the developer shall, when applicable, be a condition of either preliminary approval or final approval of a subdivision or site plan. If not imposed as a condition of preliminary approval, such off-tract improvements and the apportionment of the cost thereof shall be considered improvements under N.J.S.A. 40:55D-1 et seq., which may be imposed at the time of final approval.

(Ord. #637-99)

26-104.7 Payment of Allocated Cost.

a.

The estimated cost of the off-tract improvement allocated by the developer, if deposited in cash, shall be paid by the developer to the Borough Treasurer, who shall provide a suitable depository therefor, and such funds shall be used only for the off-tract improvements serving the same purpose. If such improvements are not initiated by the Borough within a period of ten (10) years from the date of payment, then funds so deposited shall be returned together with accumulated interest or other interest thereof, if any.

b.

In the event the payment by the developer to the Borough Treasurer provided for herein is less than its share of the actual cost of the off-tract improvements, then it shall be required to pay its additional share of the cost thereof.

c.

In the event the payment by a developer to the Borough Treasurer provided for above is more than its appropriate share for the actual cost of installation of the off-tract improvements, it shall be repaid an amount equal to the difference between the deposit and its share of the actual cost.

d.

Before apportioning the cost of off-tract improvements to a developer, the Board shall notify and afford the developer an opportunity to be heard thereon at a public meeting. If the developer shall deem that any of the amounts so estimated by the Board are unreasonable, it may challenge them and seek to have them revised in appropriate development application proceedings.

e.

If the developer and the Borough cannot agree with respect to the developer's appropriate share of the actual cost of the off-tract improvement if the off-tract improvement is constructed as a local improvement, the dispute shall be decided in an appropriate judicial proceeding.

(Ord. #637-99)

26-104.8 Assessment of Properties. Upon receipt from the developer of its allocated share of the costs of the off-tract improvements, the Borough may adopt a local improvement assessment ordinance for the purpose of construction and installation of the off-tract improvements based upon the actual cost thereof. Any portion of the cost of the improvements not defrayed by a developer may be assessed against benefiting property owners by the Borough. Any assessments for benefits conferred made against the developer or its successors in interest shall be first offset by a pro-rata share credit of the allocated costs previously deposited with the Borough Treasurer pertaining thereto. The developer, or his successors in interest, shall not be liable for any part of an assessment for such improvements unless the assessment exceeds its pro-rata share credit for its deposit, and then only to the extent of the deficiency.

(Ord. #637-99)

26-104.9 Credit for Work Performed. In the event the developer installs and constructs an off-tract development or any portion thereof, which improvement is accepted by the Borough, then the cost shall be treated as a credit against any future assessment for that particular off-tract improvement, or portion thereof constructed by the Borough in the same manner as if the developer had deposited its apportioned cost with the Borough Treasurer, as provided herein.

(Ord. #637-99)

26-104.10 Installation of Improvements by Applicant.

a.

At the discretion and option of the Borough, the Borough may enter into a contract with the developer providing for the installation and construction of the off-tract improvements by the developer upon contribution by the Borough of the remaining unallocated portion of the cost of the off-tract improvement.

b.

In the event the Borough so elects to contribute to the cost and expense of installation of the off-tract improvements by the developer, the portion contributed by the Borough shall be subject to possible certification and assessment as a local improvement against benefiting property owners in the manner provided by law, if applicable.

(Ord. #637-99)

26-104.11 Design Standards. Should the developer and the Borough enter into a contract for the construction of the off-tract improvements to be performed by the developer, it shall observe all requirements and principles of this chapter and other ordinances in the design of such improvements.

(Ord. #637-99)