A. No final plat shall be approved by the approving authority until all items required to be secured by a performance guaranty (on-site, off-site, on-tract and off-tract) in the public interest have been installed, inspected, certified and approved by the Township Engineer and accepted by the governing body and a maintenance guaranty has been filed and accepted by the governing body in accordance with the requirements of this section or their installation shall have been provided for by a performance guaranty accepted and approved by the governing body in accordance with the requirements of this section. No maintenance guaranty shall be accepted, nor shall any partial facility be accepted for any item which has further stages of work to be completed or which will need to be altered or reworked in any manner due to the installation or connection of any other facility. Any improvements installed prior to final plat application that do not meet the standards of this chapter or other regulations shall be added to the performance guaranty.

B. Upon request by the applicant or the approving authority, a performance guaranty estimate shall be prepared by the Township Engineer, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth hereinafter, and submitted to the approving authority completely detailing the material and work required for the improvements and an estimated cost of providing them. The approving authority may adjust the estimate before forwarding it to the developer. The approving authority may request the Township Engineer to review and update this estimate from time to time as required. The final itemized cost estimate shall be appended to each performance guaranty posted by the developer.

C. The proposed performance guaranty shall be submitted to the approving authority by the developer. The approving authority shall review the proposed performance guaranty for accuracy and form and then submit it to the governing body for approval and acceptance by resolution. Pursuant to N.J.S.A. 40:55D-53, a performance guaranty is required as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65. No final subdivision plat shall be released for recording until a performance guaranty has been accepted and approved by the governing body in accordance with the standards set forth hereinbelow. [Amended 4-28-1999; 12-29-1999]

(1) The performance guaranty shall consist of the performance guaranty estimate and either an irrevocable standby letter of credit, a certified check, a cashier's check, cash, a surety bond, a bid bond or any combination thereof, covering 90% of the total performance guaranty in a form acceptable to the governing body and in conformance with applicable provisions of P.L. 1975, c. 291, (N.J.S.A. 40:55D-1 et. seq.) and 10% cash in the form of either a certified check or bank check. At the option of the developer, additional cash in the form of a certified or bank check up to the amount of the total performance guaranty may be provided. The Township Treasurer shall cause the certified check(s) to be deposited in a bank approved by the governing body in the name of the Township of Colts Neck. The letter of credit or certified check are to be retained as security for completion of all requirements and are to be used by the Township of Colts Neck to pay the cost and expense of obtaining completion of all requirements. If the required improvements have not been installed or constructed in accordance with the standards of the Township or within the stipulated time, the obligor and/or co-obligor, as provided by law, for the performance guaranty, shall be liable thereon to the Township for the reasonable costs of the improvements or of the uncompleted portion thereof, including engineering, legal and administration costs, and upon authorization by the governing body, the Township Attorney or Township Clerk shall take the necessary steps to obtain such funds to cover the costs from the obligor and/or co-obligor.

(2) Notwithstanding the foregoing, the governing body may accept a letter of credit as a performance guaranty for up to 90% of the cost estimate provided for in Subsection C(3) of this section, where the governing body has found that said letter of credit meets the standards set forth in N.J.S.A. 40:55D-53.5 and set forth with particularity in § 102-16O, infra.

(3) The total performance guaranty shall equal 120% of the performance guaranty cost estimate plus an amount equal to 15% of the cost of any facilities installed prior to submission for final development approval as a guaranty to assure upkeep of these facilities until accepted by the governing body and covered by a maintenance guaranty. In the even of default, the 10% cash fund herein mentioned shall be first applied to the completion of the requirements, and the cash, certified check or irrevocable standby letter of credit shall thereafter be restored to, if necessary, for the completion of the requirements. The cash performance guaranty or letter of credit may recite the foregoing provisions. The Township Engineer's certification that the principal/obligor has satisfactorily installed or has defaulted in meeting the required standards of construction and/or in providing all the required improvements shall be the basis for governing body action which accepts or rejects the improvements, withholds approval, institutes appropriate action to obtain cost and expenses from the obligor and/or co-obligor in cases of default or extends the time allowed for installation of the improvements. The performance guaranty shall stay in full force and effect until released by resolution of the governing body. The initial term of this guaranty shall be for one year. At the end of the initial or any subsequent guaranty term, upon request of the governing body, in writing, by certified mail, with copies to the Planning Board and Township Engineer, the applicant may request an extension of the guaranty interval.

(4) After a review by the Township Engineer of the cost of uncompleted improvements and the potential cost to repair defective installed improvements, the governing body may increase or decrease the amount of the original performance guaranty, may require a new or modified performance guaranty to be provided by the applicant, may extend the guaranty interval or may deny the request for an extension if the subdivision or site plan approval resolution did not specifically grant a longer interval for completion of all improvements. Notwithstanding the terms of any performance guaranty then in force, all improvements in a total or portion of a major subdivision or site development as covered by the performance guaranty in question shall be completed by the applicant in a manner acceptable to the governing body within two years of issuance of the first certificate of occupancy in a major subdivision and within one year for a major site development, unless extended by the governing body for good cause.

(5) Notwithstanding the foregoing, the governing body may accept a certificate of deposit as a performance guaranty for up to 90% of the amount of performance guaranty provided for in Subsection C(3) of this section, subject to the following terms and conditions:

(a) The present value of any such certificate of deposit, at the time of posting, shall be equal to 100% of the cash equivalent of the percentage of the performance guaranty provided for in Subsection C(3) of this section and for which such certificate of deposit shall be posted.

(b) Except as is provided for in Subsection C(5)(d) of this section, the governing body shall not accept any certificate of deposit which shall have a present value as of posting in an amount of less than $100,000. In addition, the Chief Financial Officer shall approve the depository bank which shall have issued such certificate of deposit.

(c) The term of any such certificate of deposit shall be for a period of six months and shall provide, either on its face or on the assignment provided for herein, for automatic renewal of such certificate by the depository bank, unless the depository bank shall forward notice of nonrenewal of such certificate to the Township by certified mail, return receipt requested, not less than 60 days prior to the anniversary date of such certificate of deposit. In the event that the Township shall receive notice of intent not to renew the certificate of deposit from the depository bank, then the Township shall be entitled to draw upon such certificate of deposit in an amount equal to 120% of the costs of those improvements which have not been completed by the developer in accordance with the Township's standards.

(d) In the event that the developer shall apply for partial release of any such certificate of deposit, it shall be a requirement of such partial release that the developer shall post a certificate of deposit or a letter of credit with a present value at the time of the posting of the same equal to 120% of the remaining balance of the cost of improvements which have not been completed in accordance with the Township's standards. Any such certificate of deposit or letter of credit shall otherwise conform to the requirements of this section or to the Colts Neck Township development regulations, except that any such certificate of deposit posted in connection with an application for partial release may be in an amount less than $100,000. In no event shall the Township release more than 30% of the amount of the original performance guaranty posted with the Township until completion and acceptance of all improvements and posting of maintenance guaranties.

(e) In the event that the Township shall draw upon any certificate of deposit posted under this section, the Township shall be entitled to include in the amount to be drawn upon by the Township any fees and penalties for early withdrawal and any loss of interest which would otherwise be retained by the Township and which resulted from the drawing upon such certificate of deposit of the Township.

(f) The Township shall be entitled to retain, for administrative expenses, a sum equal to 1/3 of the interest which shall accrue with respect to any certificate of deposit under this section from the time of posting to the time of the release of the same by the Township and which shall be in lieu of all other administrative and custodial expenses incurred by the Township in connection with the posting and retention of such certificate of deposit.

(g) It shall be a condition of the posting of any certificate of deposit under this section that the developer shall provide the Township with an assignment of such certificate of deposit in form satisfactory to the Township Attorney which shall include a consent to such assignment executed by the depository bank.

D. The Township Clerk shall immediately notify the approving authority when the performance guaranty has been approved and accepted by the governing body.

E. Preconstruction conference; billing; reports.

(1) Prior to beginning any site improvements, changes, grading, construction or any other site work covered by this chapter, the developer shall arrange for a preconstruction conference between the developer, contractors and Township Engineer. All improvements shall be inspected during installation by the Township Engineer to ensure satisfactory completion. The Township Engineer shall be notified by the developer 14 days in advance of the start of initial construction and five days in advance of all subsequent phases of construction if a time period of five days has lapsed since the date of the last inspection. The cost of said inspection shall be the responsibility of the developer.

(2) The developer is required to pay over to the Township prior to the preconstruction conference an initial construction inspection fee equal to the greater of $500 or 5% of the total cost of the improvements, which shall deposited by the Township in an account with other similar fees. This fee shall be in addition to the amount of the performance guaranty and all other fees covered by this chapter. The moneys shall be deposited in this manner so that the Township shall have funds available to reimburse it for Township Engineer or other agent, servant or employee fees it will incur regarding the developer's project.

(3) Improvement costs, as estimated in this section, shall be defined to include but not be limited to material, construction and installation, costs of grading, pavement, monuments, drainage structures, storm sewers, sanitary sewers and other means of sewerage disposal, water mains, fire protection features, streets, gutters, curbs, culverts, sidewalks, streetlighting, shade trees, parking areas, landscaping, street signs, erosion control and sedimentation control devices, public improvements of open space and other on-tract and off-tract improvements.

(4) The Engineer and other agents of the Township shall bill the Township for their services in connection with the developer's project. In the event that the bills submitted to the Township as the work progresses exceed 75% of the amount initially deposited by the developer, then the Engineer shall submit a new estimate of the total construction inspection fee. If the new estimated total construction inspection fee is in excess of the initial amount provided by the developer, then the Planning Board shall forward a copy of the new estimate to the developer via certified mail, return receipt requested, and the developer shall then deposit additional moneys with the Township sufficient to cover the new estimated total.

(5) At reasonable intervals, if requested by the developer, the Planning Board shall request the Engineer to submit reports which shall detail his or her services and charges provided to the Township regarding the developer's project, and the same shall be made available to the developer. When the engineering and other services regarding the developer's project are concluded, if the bills of the Township Engineer and other agents, servants and employees are in a sum less than the moneys deposited by the developer, the Township shall cause a refund to be made to the developer at such time as the developer has satisfied his or her obligations to the Township of Colts Neck pursuant to the provisions of this chapter. If the Engineer's bills are in a sum greater than the moneys deposited by the developer, then on notification the developer shall forthwith deposit additional moneys with the Township of Colts Neck which shall be in an amount sufficient to reimburse the Township of Colts Neck for all of its engineering and associated cost in connection with the developer's project.

F. No work covered by development approval and/or ordinance provisions shall be done without permission from the Township Engineer. A representative of the Township Engineer's office shall, at the option of the Township Engineer, be present at the time all work is performed. No underground installation shall be covered until inspected and approved.

G. Electrical, gas, telephone and all other public utility installations installed by utility companies or their agents are excepted from the above inspection requirements.

H. Occupancy permits will be issued only when the installation of curbs, utilities, functioning water supply and sewage treatment facilities, necessary storm drainage to ensure proper drainage of the lot and surrounding land, rough grading of lots, soil stabilization, base course for the street and driveway, erosion and sedimentation control devices and sidewalks are installed to serve the lot and structure for which the permit is requested.

I. Inspection by the Township of Colts Neck Engineer or other agents, servants or employees of the installation of improvements and utilities by the developer shall not operate to subject the Township of Colts Neck to liability for claims, suits or liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter, it being recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the developer and his or her contractors, if any.

J. Request for performance guaranty reduction or release.

(1) Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements and the connection of the same to the public system, the obligor may request of the governing body, in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsections B and C of this section, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the developer shall send a copy of the request to the approving authority and the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the developer. Thereupon the Municipal Engineer shall inspect all improvements covered by the developer's request and shall file a detailed list and report, in writing, with the Township Committee and shall simultaneously send a copy thereof to the developer not later than 45 days after receipt of the developer's request.

(2) The list prepared by the Municipal 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. The report prepared by the Municipal Engineer shall 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 guaranty relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsections B and C of this section. Payment of all outstanding construction inspection fees is a condition precedent to release of and/or reduction of performance guaranties. Attached to the approving authority's and Township Engineer's copies of final inspection request by the developer shall be provided one copy of improvement and utility plans and profiles amended to read and show "as constructed and/or installed," unless the Township Engineer determines that the approved plats are adequate.

K. Processing requests for performance guaranty reduction or release.

(1) The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Municipal Engineer or reject any or all of these improvements upon the establishment in the resolution of cause for rejection and shall approve and authorize the amount of reduction to be made in the performance guaranty relating to the improvements accepted in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsections B and C of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the developer shall be released from all liability pursuant to its performance guaranty, with respect to those approved improvements, except that an amount equal to 15% of the cost of completed improvements to assure upkeep of these improvements until all improvements are completed and covered by a maintenance guaranty shall be withheld and 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 guaranty posted may be retained to ensure completion and acceptability of all improvements.

(2) If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection K(1) of this section within 45 days from the receipt of the request, the developer may apply to the Court in a summary manner for an order compelling the Municipal Engineer to provide the list and report within a stated time, and the cost of applying to the Court, including reasonable attorneys' fees, may be awarded to the prevailing party. If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guaranty for the complete and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the developer may apply to the Court in a summary manner for an order compelling, within a stated time, approval of a reduction in the performance guaranty for the approval of complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection K(1) of this section; and the cost of applying to the Court, including reasonable attorneys' fees, may be awarded to the prevailing party.

(3) In the event that the developer has made a cash deposit with the municipality or the approving authority as part of the performance guaranty, then any partial reduction granted in the performance guaranty 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 guaranty.

L. If any portion of the required improvements is not completed and/or is rejected, the approving authority may require the obligor to complete such improvements, and, upon completion, the same procedure of notification as set forth in this section shall be followed. If the required improvements are not completed or corrected in accordance with the performance guaranty and/or the requirements in this chapter and/or in the conditions of application approval, the obligor and co-obligor, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected and other associated costs, and the municipality may require payment under the performance guaranty and may, either prior to or after the receipt of the proceeds thereof, complete such improvements.

M. The approval of any plat under this chapter by the approving authority shall in no way be construed as acceptance of any street or drainage system or any other improvement required by this chapter, nor shall such plat approval obligate the Township in any way to maintain or exercise jurisdiction over such street or drainage system or other improvement.

N. No improvement shall be accepted or any performance guaranty fully released by the governing body unless and until all of the following conditions have been met:

(1) The Township Engineer shall have certified, in writing, that the improvements in question are complete and that they comply fully with the requirements of this chapter and the approved plans and any conditions placed on approval and of other applicable local ordinances.

(2) The developer has provided a maintenance guaranty as defined hereinabove to the governing body in an amount equal to 15% of the cost of improvements and running for two years. The maintenance guaranties shall be in a form and content acceptable to the governing body and shall stay in full force and effect until released by resolution of the governing body. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by a performance or maintenance guaranty to another governmental agency, no performance or maintenance guaranty, as the case may be, shall be required by the Township for such utilities or improvements. A municipality shall not require that a maintenance guaranty required pursuant to this section be in cash or that more than 10% of a performance guaranty pursuant to that section be in cash. A developer may, however, provide at his or her option some or all of a performance guaranty in cash.

(3) To obtain release of the maintenance bond, the developer shall, after all maintenance required has been completed, apply to the governing body, in writing, by certified mail, with copies to the approving authority and Township Engineer, for final inspection of the work; such request shall be accompanied by a current certification by the administrative officer stating that all construction inspection fee bills rendered to the developer have been paid. The Township Engineer shall, within 30 days of receipt of request for inspection, report, in writing, to the approving authority, indicating either approval, partial approval or rejection of the improvements from a maintenance viewpoint, with a statement of reasons for any rejection.

(4) Upon recommendation of the approving authority, the governing body shall either approve or reject improvements and release of the maintenance bond or reduce the amount of the maintenance bond, following the same procedures as for a performance guaranty. Any unused construction inspection fees shall be returned to the applicant within 90 days of release of the maintenance guaranty.

(5) If the required maintenance work has not been completed in accordance with the standards of the Township or within the stipulated time, the obligor and/or surety, as provided by law, for the bond shall be liable thereon to the Township for the reasonable cost of required maintenance work, including engineering, legal and administrative costs, and upon authorization by the governing body, the Township Attorney shall take the necessary steps to obtain such costs from the obligor and/or surety either prior to or after completion of the required maintenance work by the Township or its agents.

O. The approving authority shall, for the purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53), accept a performance guaranty or maintenance guaranty which is an irrevocable letter of credit if it:

(1) Constitutes an unconditional payment obligation of the issuer running solely to the municipality for an express initial period of time in the amount determined pursuant to Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53);

(2) Is issued by a banking or savings institution authorized to do and doing business in this state;

(3) Is for a period of time of at least one year; and

(4) Permits the municipality to draw upon the letter of credit if the developer fails to furnish another letter of credit which complies with the provisions of this section 30 days or more in advance of the expiration date of the letter of credit or such longer period in advance thereof as is stated in the letter of credit.

P. The cost of the installation of improvements for the purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53), shall be estimated by the Municipal Engineer based on documented construction costs for public improvements prevailing in the general area of the municipality. The developer may appeal the Municipal Engineer's estimate to the governing body. The governing body shall decide the appeal within 45 days of receipt of the appeal, in writing, by the Municipal Clerk. After the developer posts a guaranty with the municipality based on the cost of the installation of improvements as determined by the governing body, he or she may institute legal action within one year of the posting in order to preserve the right to a judicial determination as to the fairness and reasonableness of the amount of the guaranty.

All ordinances or parts of ordinances which are inconsistent with the provisions of this chapter are hereby repealed to the extent of such inconsistency. Upon the adoption of this chapter according to law, all previously adopted subdivisions, site plan and zoning ordinances and their amendments are repealed.

See § 102-16, Guaranties and inspections, in Article IV.

A. The provisions of this chapter shall be held to be minimum requirements. Where this chapter establishes both minimum and maximum standards, both standards shall be met even though the combination of standards may not permit development to take advantage of all standards simultaneously. Where any provision of this chapter imposes restrictions different from those imposed by any other provision of this chapter or any other ordinance, rule or regulation or other provision of law, whichever provision(s) are most restrictive or impose higher standards shall control.

B. For zoning district boundary interpretations, see Part 3.

A. No construction permit or certificate of occupancy shall be issued for any parcel of land or structure which was sold or on which improvements were undertaken in violation of the provisions of this chapter or for use of a lot which was created by subdivision after the effective date of and not in conformity with the provisions of this chapter. No site improvements, such as, but not limited to, excavation or construction of public or private improvements, shall be commenced except in conformance with this chapter and in accordance with plat approvals and the issuance of required permits.

B. It shall be unlawful to use or permit the use of any building or site or part thereof hereafter created, erected, changed, converted, altered or enlarged, wholly or in part or which involves a change in use, until a certificate of occupancy shall have been issued by the Construction Official. No certificate shall be issued unless the land, building and use thereof comply with this chapter, unless all matters incorporated on the approved subdivision or site plan have been completed, certified by the Township Engineer and approved by the approving authority or until a performance guaranty approved by the approving authority, acceptable to the governing body, in a form approved by the Township Attorney, in an amount determined by the Township Engineer to be sufficient to assure completion of all the remaining improvement(s) and in a form guaranteeing completion of the remaining improvements within a minimum of two years is in hand and unless the building and health codes are complied with.

C. For construction permits in conflict with the Official Map or construction permits for a lot not related to a street, see §§ 102-8 and 102-21.

A. Establishment.

(1) There is hereby established in the Township of Colts Neck, pursuant to the Municipal Land Use Law, as amended, a Planning Board of nine members, consisting of the following four classes:

(a) Class I shall consist of the Mayor.

(b) Class II. One of the officials of the Township, other than a member of the governing body, to be appointed by the Mayor, provided that if there is an Environmental Commission member who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1, as amended, said member shall be deemed to be the Class II Planning Board member if there is both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV members.

(c) Class III shall consist of a member of the governing body to be appointed by it.

(d) Class IV shall consist of six other citizens of the Township to be appointed by the Mayor.

(2) The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the Board of Education. A member of the Environmental Commission who is also a Planning Board member as required by N.J.S.A. 40:56A-1, as amended, shall be a Class IV Planning Board member, unless there be among the Class IV members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be a Class II member of the Planning Board.

(3) Alternate members shall be appointed by the appointing authority for Class IV members and shall meet the qualifications of Class IV members of nine-member Planning Boards. Alternate members shall be designated at the time of appointment by the Mayor as Alternate No. 1 and Alternate No. 2. No alternate member shall be permitted to act on any matter in which he or she has either directly or indirectly any personal or financial interest. An alternate member may, after public hearing if he or she requests one, be removed by the governing body for cause.

(4) 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.

B. Terms.

(1) The term of the member composing Class I shall correspond with his or her official tenure. The terms of the members composing Classes II and III shall be for one year or shall terminate at the completion of their respective terms 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 or her term of office as a member of the Environmental Commission, whichever occurs first.

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

(3) 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; provided, however that no term of any member shall exceed four years, and further provided that nothing herein shall affect the term of any present member 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 herein provided. All terms shall run from January 1 of the year in which the appointment was made.

(4) 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. A vacancy occurring otherwise than by expiration of term shall be filled by the appointing authority for the unexpired term only.

C. Vacancies. If a vacancy of any class shall occur otherwise than by expiration of a term, it shall be filled by appointment by the Mayor for the unexpired term.

D. Authority. Except where a variance is involved under § 102-8B(2)(d) of this chapter, the Planning Board is the approving agency for approval of all subdivisions, site plans and conditional uses which conform to the provisions of this chapter, and the owner, developer or occupant is required to request such approval. The Planning Board shall have the following authority:

(1) The Planning Board, when reviewing development applications, may grant exceptions as noted in § 102-13, Exceptions, in Article IV, and shall have the power to grant variances to the same extent and subject to the same restrictions as the Zoning Board of Adjustment for the following.

(a) The Planning Board shall have the power to grant a variance where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to Part 3 herein would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of such property; grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; where, in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning provision requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Parts 3 and 4 herein; provided, however, that no variance from those departures enumerated in § 102-8B(2)(d) of this chapter shall be granted under this subsection.

(b) Whenever relief is requested pursuant to this subsection, notice of the hearing on the application for development shall include reference to the request for a variance or direction for issuance of a construction permit, as the case may be. Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for a variance or the issuance of a permit, the Planning Board shall grant or deny approval of the application within 120 days after submission of a complete application to the administrative officer and certification of the same as complete by the administrative officer or within such further time as may be consented to by the applicant. Failure of the Planning Board to act within this period shall constitute approval of the application.

(c) The Planning Board shall have the power to direct the issuance of a permit for a building or structure in the bed of a mapped street or public drainageway, flood-control basin or public area reserved on an adopted Official Map whenever one or more parcels of land located in these areas cannot yield a reasonable return to the owner unless a construction permit is granted, provided that the approval given will, as little as practicable, increase the cost of opening such street or tend to cause minimum change to the Official Map, and the Board shall impose reasonable requirements as a condition of granting the permit so as to promote the health, morals, safety and general welfare of the public. A variance under this subsection shall be granted only by an affirmative vote of a majority of the full authorized membership of the Planning Board.

(d) The Planning Board shall have the power to direct the issuance of a permit for a building or structure not related to a street where the denial of the permit would entail practical difficulty or unnecessary hardship or the circumstances do not require the building or structure to be related to a street, except that the issuance of such a permit shall be subject to conditions that will provide adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and subject to conditions that will protect any future street layout shown on the Official Map or on a general circulation plan element of the Master Plan.

(e) Whenever a variance is granted pursuant to this subsection along with subdivision and/or site plan approval, the period of time to commence the development approved by the Planning Board shall be the same as the period of time for other rights conferred upon the applicant by such subdivision or site plan approval. [Added 5-25-2005]

(2) The Planning Board shall also have the power to review and approve or deny conditional uses as outlined in § 102-11, Conditional uses, in Article IV. The Board has the authority to review all aspects of a development plan simultaneously with a review for a subdivision and/or a site plan without the developer being required to make further application to the Planning Board or the Planning Board being required to hold further hearings. The longest time period for action by the Planning Board, whether it be for subdivision, conditional use or site plan approval, shall apply. Whenever approval of a conditional use is requested by the developer pursuant to these provisions, notice of the public hearing shall include reference to the request for a subdivision or site plan.

(3) Hearing notices and actions taken by the Planning Board when reviewing the site plan or subdivision simultaneously with applications requiring considerations for conditional uses and variances shall be in accordance with § 102-24, Public hearings and notices, in Article IV.

(4) In the event that the Planning Board disapproves a development plan, no construction permit or certificate of occupancy shall be issued. Any applicant wishing to make a change in an approved application shall follow the same procedures as the original application.

(5) The Planning Board shall have the authority to permit a deviation from the final plan if caused by change of conditions beyond the control of the developer since the date of final approval and the deviation would not substantially alter the character of the development or substantially impair the intent and purpose of the Master Plan and zoning regulations.

(6) Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for a variance or construction permit in conflict with the Official Map or for a lot not related to a street, the Planning Board shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer and certification of the same as complete by the administrative officer or within such further time as may be consented to by the applicant.

(7) The Planning Board Chairman may, from time to time and as may be appropriate, create committees of the Board in addition to the Technical Review Committee for such duration and purpose as may be appropriate in order to undertake research, submit findings and make recommendations to the Board and to perform such other advisory roles as may be needed. The Chairman shall appoint one or more members to serve on each committee.

E. See also § 102-23, Provisions applicable to both Zoning Board of Adjustment and Planning Board, in Article IV.

F. If the Planning Board lacks a quorum because any of its regular or alternate members is prohibited by Subsection b of Section 14 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-23), or Section 13 of P.L. 1979, c. 216 (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 is 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.

All uses not expressly permitted in this chapter are prohibited.

A. Organization of Board. The Planning Board shall elect a Chairperson and Vice Chairperson from the members of Class IV. The Zoning Board of Adjustment shall elect a Chairperson and Vice Chairperson from its membership. Both Boards shall elect a Secretary.

B. Attorney. There is hereby created the Office of Planning Board Attorney and the Office of Attorney to the Zoning Board of Adjustment. Each Board may annually appoint, fix the compensation of or agree upon the rate of compensation of its respective Board Attorney who shall be an attorney other than the Township Attorney.

C. Experts and staff. The Planning Board and the Zoning Board of Adjustment may employ or contract for the services of experts and other staff and services as they may deem necessary, including an Assistant Secretary to perform secretarial duties. The Board shall not authorize expenditures which exceed, exclusive of the gifts or grants, the amount appropriated by the governing body for its use.

D. Rules and regulations. Each Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter. In the issuance of subpoenas, the administration of oaths and the taking of testimony, the provisions of the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq., as amended) shall apply.

E. Conflicts of interest. No member of the Planning Board or Zoning Board of Adjustment shall act on any matter in which he or she has, either directly or indirectly, any personal or financial interest. Whenever any such member shall disqualify themselves from acting on a particular matter, they shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion of the decision relating thereto.

F. Meetings.

(1) Meetings of both the Planning Board and the 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 or other good cause.

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

(3) No action shall be taken at any meeting without a quorum being present. All actions shall be taken by majority vote of the members of the approving authority present at the meeting, except as otherwise required by any provision of Chapter 291 of the Laws of New Jersey 1975, as amended.

(4) 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, P.L. 1975, c. 231, as amended.

G. 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 the reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Municipal Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceeding concerning the subject matter of such minutes. Such interested party may be charged a fee for reproduction of the minutes for his or her use.

H. Hearings.

(1) 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., as amended, or of this chapter.

(2) Oaths. The officer presiding at the hearing or such person as he or she may designate shall have the power to administer oaths or 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., as amended), shall apply.

(3) 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 of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.

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

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

(6) Certified Court reporter. If an applicant desires a certified Court reporter, the cost of taking testimony and transcribing it and providing a copy of the transcript to the Township shall be at the expense of the applicant who shall also arrange for the reporter's attendance.

(7) Voting. When any hearing before either the Zoning Board of Adjustment or Planning Board shall carry over two or more meetings, a member of the Board who was absent for one or more of the meetings shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his or her absence from one or more of the meetings; provided, however, that such Board member has available to him or her a transcript or recording of the meeting from which he/she was absent and certifies, in writing, to the Board that he/she has read such transcript or listened to such recording.