A. Purpose.

The purpose of this section is to ensure a pro rata share allocation of the costs for off-tract improvements necessitated by new development.

B. Definition of principles.

(1) As a condition of final subdivision and/or site plan approval, the municipal agency may require an applicant to either install or pay his pro rata share of the costs of providing necessary circulation improvements, water, sewerage, drainage facilities, any other public improvements or facilities (i.e., public recreation, public buildings, public equipment), including land and easements and all items necessary to administer and maintain the Township's public functions, located off tract of the property limits of the subdivision or development but necessitated or required by the development. "Necessary improvements" are those clearly and substantially related to the development in question.

(2) The municipal agency shall provide, in its resolution of approval, the basis of the required improvements.

(3) The capacity and design of proposed improvements shall be based upon sources, including, but not limited to, the adopted Nutley Township Master Plan, the adopted Nutley Township Zoning Ordinance and the adopted Nutley Township Site Plan Ordinance.

(4) The improvement and/or widening of a stream or the construction of drainage or other improvements in a street or road fronting on the tract to be subdivided and/or developed shall not constitute an off-tract improvement, and the cost of said improvement shall not be allocated.

(5) The proportionate or pro rata amount of the cost of such facilities within a related or common area shall be based on the criteria contained herein.

C. Cost allocation.

(1) Full allocation. In cases where off-tract improvements are necessitated by the proposed development and no other property owner(s) receive(s) a special benefit thereby, the applicant may be required at his sole expense and as a condition of approval to provide and install such improvements.

(2) Proportionate allocation.

(a) Where it is determined that properties outside the development will also be benefited by the of tract improvement, the following criteria shall be utilized in determining the proportionate share of the cost of such improvements to the developer, provided that the improvements are not required because the developer has realigned existing easements in order to obtain the maximum density for development.

(b) Allocation formula.

[1] Drainage improvements.

The applicant's proportionate share of stormwater and drainage improvements, including the purchase of land for easements, the installation, relocation or replacement of storm drains, culverts, , catch basins, manholes, riprap, improved drainage ditches and appurtenances thereto, and installation, relocation or replacement of other storm drainage facilities or appurtenances associated herewith, shall be determined as follows:

[a] The capacity and the design of the drainage system to accommodate stormwater runoff shall be based on the methods and standards consistent with this chapter, computed by the developer's engineer and approved by the engineer and the municipal agency.

[b] The capacity of the enlarged, extended or improved system required for the development and areas outside of the developer's tributary to the drainage system shall be determined by the developer's engineer and shall be subject to the approval of the engineer of the municipal agency. The plans for the improved system shall be prepared by the developer's engineer and the estimated cost of the enlarged system calculated by the engineer of the municipal agency. The pro rata share for the proposed improvement shall be computed as follows:

[2] Roadways and transportation facilities.

The applicant's proportionate share of street improvements, alignment, channelization, barriers, new or improved traffic signalization, signs, curbs, sidewalks, streetlighting, trees, utility improvements uncovered elsewhere, the construction or reconstruction of new or existing streets and other associated street or traffic improvements shall be as follows:

[a] The applicant shall provide the engineer of the municipal agency with the existing and anticipated future peak-hour flows for the off-tract improvements.

[b] The applicant shall furnish a plan for the proposed off-tract improvement, which shall include the estimated peak-hour traffic generated by the proposed development and the proportion thereof which is to be accommodated by the proposed off-tract improvement. The ratio of the peak-hour traffic development, which is to be accommodated by the of tract improvement, to the future additional peak-hour traffic anticipated to impact the proposed off-tract improvement shall form the basis of the proportionate share. The proportionate share shall be computed as follows:

[3] Sanitary sewers.

The applicant's proportionate share of distribution facilities, including the installation, relocation or replacement of collector, trunk and interceptor sewers and associated appurtenances, shall be computed as follows:

[a] The capacity and the design of 'the sanitary sewer system shall be based on the requirements and standards set forth in this chapter.

(b] The Nutley Township Municipal Engineer shall provide the applicant with the existing and reasonably anticipated peak-hour flows as well as capacity, limits of the affected sewer system.

[c] If the existing system does not have adequate capacity to accommodate the applicant's how, given existing and reasonably anticipated peak-hour flows, the pro rata share shall be computed as follows:

[4] Water supply.

The applicant's proportionate share of water distribution facilities, including the installation, relocation, or replacement of water mains, hydrants, valves and associated appurtenances, shall be computed as follows:

[a] The capacity and the design of the water supply system shall be based on the requirements and standards set forth in this chapter.

[b) The Nutley Township Municipal Engineer shall provide the applicant with the existing and reasonably anticipated capacity limits of the affected water supply system in terms of average demand, peak demand and fire demand.

[c] If the existing system does not have adequate capacity as defined above to accommodate the applicant's needs, the pro rata share shall be computed as follows:

[5] Other improvements.

The applicants' proportionate share of other capital improvements shall be computed as follows:

D. Escrow accounts.

(1) Where the proposed off-tract improvement is to be undertaken at some future date, the monies required for the improvement shall be deposited in an interest-bearing account to the credit of the Township in a separate account until such time as the improvement is constructed.

(2) If the off-tract improvement is not begun within 10 years of deposit, all monies and interest shall be returned to the applicant upon his request. An offtract improvement shall be considered "begun" if the Township has taken legal steps to provide for design and financing of such improvement.

(3) If the applicant does not request the return of the money within a period of one year, the money shall be placed in the Township's general capital improvement fund and shall not be returnable to the applicant thereafter.

E. Redetermination upon completion of improvements.

(1) Upon completion of off-tract improvements required pursuant to this section,. the developer's liability hereunder shall be recalculated in accordance with the actual, as compared with the estimated cost of the improvements. To the extent that it shall decrease the amount thereof, the Township shall forthwith refund the amount of such decrease to the developer.

(2) In the event that the payment by the applicant provided for herein is less than his share of the actual cost of the off-tract improvements, then the applicant shall be required to pay the appropriate share of the cost thereof.

F. Referral to Board of Commissioners.

(1) Where an application for development suggests the need for of tract improvements, whether to be installed in conjunction with the development in question or otherwise, the municipal agency shall forward to the Board of Commissioners a list and description of all such improvements, together with a request that the Board of Commissioners determine and advise the municipal agency of the procedure to be followed in installation thereof, including timing. The municipal agency shall defer final action on the application for development until receipt of the Board of Commissioners' determination or the expiration of 90 days after the forwarding of such a list and description to the Board of Commissioners without determinations having been made, whichever comes first.

(2) The Board of Commissioners, within 90 days after receipt of said list and description, shall determine and advise the municipal agency of the procedure to be followed and may suggest conditions of approval, if any, to adequately protect the Township.

(3) In the event that the municipal agency is required by statute to act on the application prior to receipt of the Board of Commissioners' determination as to installation and/or payment of pro rata share of off-tract improvements, it shall request the applicant to consent to an extension of time, within which to act, of sufficient duration to enable the Board of Commissioners to make the aforesaid determination. In the event that the applicant is unwilling to consent to the requested extension of time, the municipal agency shall, in its discretion, either itself determine the procedure to be followed in installation and/or payment of pro rata share of the aforesaid off-tract improvements or shall condition its approval upon the subsequent determination of the Board of Commissioners.

(4) The municipal agency shall only grant a preliminary approval until all off-tract improvements have been completed and approved by the appropriate municipal, county, state and/or federal agency having jurisdiction there over.

G. Implementation of off-tract improvements.

(1) In all cases, applicants shall be required to enter into an agreement with the Township in regard to installation and/or payment of their pro rata share of off-tract improvements in accordance with this chapter and any other ordinances, policies, rules and regulations of Nutley Township, Essex County, the State of New Jersey and any departments, authorities or agencies thereof deemed necessary.

(2) Where properties outside the subject tract will be benefited by the improvements, the Board of Commissioners may require the applicant to escrow sufficient funds in accordance with this chapter to secure the applicant's pro rata share of the eventual cost of providing future improvements and/or facilities based on the standards set forth herein.

(3) General improvement.

(a) Where properties outside the subject tract will benefit by the improvement, the Board of Commissioners may determine that the improvement is to be installed by the Township as a general improvement, the cost of which is to be borne as a general expense.

(b) If the Board of Commissioners determines that the improvement shall be installed as a general improvement, the Board of Commissioners may direct the municipal agency to estimate, with the aid of the engineer of the municipal agency or such other persons who have pertinent information or expertise, the amount (if any) by which the total cost thereof will excess the total amount by which all properties, including the subject tract, will be specifically benefited thereby, and the applicant shall be liable to the Township for such expense.

(c) If the Board of Commissioners determines that the improvement shall be installed as a local improvement, all or a part of the cost of which is to be assessed against properties benefited thereby in proportion to the benefits conferred by the improvement in accordance with Chapter 56 of Title 40 of the Statutes of the State of New Jersey, the applicant may be required to sign an agreement acknowledging and agreeing to this procedure. In addition, the Board of Commissioners may require that the applicant be liable to the Township in addition to the amount of any special assessments against the subject property for benefits conferred by the improvement, the difference between the total amount by which all properties, including the subject tract, are specially benefited by the improvement as may be determined by the Township.

(4) If the Board of Commissioners determines that the improvement is to be installed by the applicant, such agreement may contain provisions consistent with the standards in this chapter and any other ordinances, rules, regulations or policies of the Township of Nutley, County of Essex, the State of New Jersey and any departments, authorities or agencies thereof with jurisdiction therein, whereby the applicant shall be reimbursed by the Township or otherwise as a result of any participation fees, connection charges, charges paid in regard to developer's agreements with other applicants and the like, all in accordance with an agreement between the Board of Commissioners and the applicant.

(5) In determining the procedures to be followed in the event of the submission of a list and request from the municipal agency, the Board of Commissioners shall be guided by the following:

(a) The local trends in regard to the potential of development within the drainage or circulation area in question and the intensity of such development.

(b) The risk or exposure that neighboring areas are subject to in the event that required improvements are delayed.

(c) The extent to which temporary measures may sufficiently alleviate the condition or conditions requiring the off-tract improvements and the likelihood that larger, regional or subregional facilities will be required in the future to serve the development tract and the general area of the Township in which the same is located.

(d) The extent to which the health, safety and welfare of both present and future municipal residents depend upon the immediate implementation of the off-tract improvement.

(e) Provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., as it now exists or as it may hereafter be amended.