Any variance from the terms of the zoning ordinance hereafter granted by the Board of Adjustment, permitting the creation or alteration of any structure or structures or permitting a specified use of any structure or any property in a district restricted against such use, shall expire by limitation unless construction or alteration or use shall have been actively commenced as permitted by such variance within three (3) years from the date of adoption of the resolution by the Zoning Board, except as otherwise provided for by the granting authority; provided, however, that the Zoning Board is hereby granted the authority to grant a one-year extension, provided that the applicant for such extension shall give prior notice of this application requesting such extension to those persons entitled thereto pursuant to Section 11 of this chapter; provided, however, that such period of limitation herein provided shall be tolled from the date of appeal of the decision to any court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.
A. The Board, when acting upon applications for preliminary or minor subdivision approval or preliminary site plan or modification of such approvals previously granted, shall have the power to grant such exceptions from the requirements for subdivision approval or site plan approval, as the case may be, as may be reasonable and within the general purpose and intent of the provisions of subdivision and site plan review and approval, if literal enforcement of one (1) or more provisions of this chapter is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.
B. Where an applicant desires the Board to waive any requirements of subdivision or site plan approval, the applicant shall, at the time when it files its application for development, in writing, designate such requirement waivers thereof with respect to its particular applications. The Director of Planning and Engineering or his designee shall review such request and shall report thereon to the Board with recommendations. The Board shall review and determine such request at a public meeting.
C. Nothing contained herein shall prohibit the Board from granting any exceptions as described herein at the hearing on the application despite the applicant's failure to request such waivers in its application for development.
D. Nothing contained herein shall relieve the applicant from following all procedures necessary for the granting of a bulk or use variance, where applicable.
[Amended 6-10-92 By Ord. No. 92-19]
Preliminary approval of a major subdivision pursuant to P.L. 1975, c.291 (C.40:55D-48) or of a site plan pursuant to P.L.1975,c.291 (C.40:55D-46) shall confer upon the applicant the following rights for a three-year period from the date on which the resolution of preliminary approval is adopted.
A. That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layout and design standards for streets, curbs and sidewalks; lot size; yard dimensions and off-tract improvements; and, in the case of a site plan, any requirements peculiar to site plan approval pursuant to P.L. 1975, c.291 C.40:55D-41; except, however, that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety.
B. That the applicant may submit for final approval on or before the expiration date of preliminary approval the whole or section or sections of the preliminary subdivision plat or site plan, as the case may be.
C. That the applicant may apply for and the Planning Board may grant extensions on such preliminary approval for additional periods of at least one (1) year, but not to exceed a total extension of two (2) years, provided that if the design standards have been revised by ordinance, such revised standards may govern.
D. In the case of a subdivision of or site plan for an area of fifty (50) acres or more, the Planning Board may grant the rights referred to in Subsections A, B and C above for such period of time, longer than three (3) years, as shall be determined by the Planning Board to be reasonable taking into consideration the number of dwelling units and nonresidential floor area permissible under preliminary approval, economic conditions and the comprehensiveness of the development. The applicant may apply for thereafter and the Planning Board may thereafter grant an extension of time as shall be determined by the Planning Board to be reasonable taking into consideration the number of dwelling units and nonresidential floor area permissible under preliminary approval, the potential number of dwelling units and nonresidential floor area of the section or sections awaiting final approval, economic conditions and the comprehensiveness of the development: provided that it the design standards have been revised, such revised standards may govern.
E. Whenever the Planning Board grants an extension of preliminary approval pursuant to subsection C. or D. of this section and preliminary approval has expired before the date on which the extension is granted, the extension shall begin on what would otherwise be the expiration date. The developer may apply for the extension either before or after what would otherwise be the expiration date. [Added 6-10-92 by Ord. No. 92-19]
F. The Planning Board shall grant an extension of preliminary approval for a period determined by the Board but not exceeding one year from what would otherwise be the expiration date, if the developer proves to the reasonable satisfaction of the Board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued the required approvals. A developer shall apply for the extension before (1) what would otherwise be the expiration date of preliminary approval or (2) the 91st day after the developer receives the last legally required approval from other governmental entities, whichever occurs later. An extension granted pursuant to this subsection shall not preclude the Planning Board from granting an extension pursuant to subsection C. and D. of this section. [Added 6-10-92 by Ord. No. 92-19]
[Amended 6-10-92 by Ord. No. 92-19]
A. Site Plan or Maim Subdivision.
1. The zoning requirements applicable to the preliminary approval first granted and all other rights conferred upon the developer pursuant to P.L.1975, c.291 (C.40:55D-49), whether conditionally or otherwise, shall not be changed for a period of two (2) years after the date on which the resolution of final approval is adopted; provided that, in the case of a major subdivision, the rights conferred by this section shall expire if the plat has not been duly recorded within the time period provided in section 42 of P.L.1975, c.291 (C-40:55D-54). If the developer has followed the standards prescribed for final approval and, in the case of a subdivision, has duly recorded the plat as required in section 42 of P.L.1975, c.291 (C.40:55D-54), the Manning Board may extend such period of protection for extensions of one (1) year but not to exceed three (3) extensions. Notwithstanding any other provisions of this chapter, the granting of final approval terminates the time period of preliminary approval pursuant to section 37 of P.L.1975, c.291 (C.40:55D-49) for the section granted final approval. [Amended 6-10-92 by Ord. No. 92-19]
2. In the case of a subdivision or site plan for a planned unit development or planned unit residential development or residential cluster of fifty (50) acres or more or conventional subdivision or site plan for one hundred fifty (150) acres or more, the Planning Board may grant the rights referred to in Subsection A of this section for such period of time, longer that two (2) years, as shall. be determined by the Planning Board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under final approval, (2) economic conditions and (3) the comprehensiveness of the development. The developer may apply for thereafter and the Planning Board may thereafter grant an extension of final approval for such additional period of time as shall be determined by the Planning Board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under final approval, (2) the number of dwelling units and nonresidential floor area remaining to be developed, (3) economic conditions and (4) the comprehensiveness of the development.
3. Whenever the Planning Board grants an extension of final approval pursuant to subsection 1. or 2. of this section and final approval has expired before the date on which the extension is granted, the extension shall begin on what would otherwise be the expiration date. The developer may apply for the extension either before or after what would otherwise be the expiration date. [Added 6-10-92 by Ord. No. 92-19]
4. The Planning Board shall grant an extension of final approval for a period determined by the Board but not exceeding one year from what would otherwise be the expiration date, if the developer proves to the reasonable satisfaction of the Board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued these approvals. A developer shall apply for the extension before (1) what would otherwise be the expiration date of final approval or (2) the 91st day after the developer receives the last legally required approval from other governmental entities, whichever occurs later. An extension granted pursuant to this subsection shall not preclude the Planning Board from granting an extension pursuant to subsection 1. or 2. of this section. [Added 6-10-92 by Ord. No. 92-19]
B. Minor Subdivision. [Added 6-10-92 by Ord. No. 92-19]
1. Approval of a minor subdivision shall expire 190 days from the date on which the resolution of municipal approval is adopted unless within such period a plat in conformity with such approval and the provisions of the "Map Filing Law," P.L.1960, c.141 (C.46:23-9.9 et seq.), 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 accepted for such filing shall have been signed by the chairman and secretary of the Planning Board.
2. The zoning requirements and general terms and conditions, whether conditional or otherwise, upon which minor subdivision approval was granted, shall not be changed for a period of 2 years after the date on which the resolution of minor subdivision approval is adopted; provided the approved minor subdivision shall have been duly recorded as provided in this chapter.
3. The Board may extend the 190-day period for filing a minor subdivision plat or deed pursuant to this section if the developer proves to the reasonable satisfaction of the Board (1) that the developer was barred or prevented, directly or indirectly, from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities and (2) that the developer applied promptly for and diligently pursued the required approvals, as determined by the Board. The developer may apply for the extension either before or after what would otherwise be the expiration date.
4. The Board shall grant an extension of minor subdivision approval for a period determined by the Board but not exceeding one year from what would otherwise be the expiration date, if the developer proves to the reasonable satisfaction of the Board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued the required approvals. A developer shall apply for the extension before (1) what would otherwise be the expiration date of minor subdivision approval or (2) the 91st day after the developer receives the last legally required approval from other governmental entities, whichever occurs later.
[Added 11-12-91 by Ord. No. 91-111; amended 6-10-92 by Ord. No. 92-19]
Upon final approval, the final plat shall be signed by the Chairman and Secretary of the Planning Board, provided that the subdivider has submitted a final plat reflecting compliance with all conditions and requirements of final subdivision approval set forth by the Planning Board and further provided that submission of the final plat for signature by the Chairman and Secretary of the Planning Board is made within ninety (90) days of the date of Planning Board approval.
Final approval of a major subdivision shall expire 95 days from the date of 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 signing of the plat. The Planning Board may extend the 95-day or 190-day period if the developer proves to the reasonable satisfaction of the Planning Board (1) that the developer was barred or prevented, directly or indirectly, from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities and (2) that the developer applied promptly for and diligently pursued the required approvals. The length of the extension shall be equal to the period of delay caused by the wait for the required approvals, as determined by the Planning Board. The developer may apply for an extension either before or after the original expiration date. [Added 610-92 by Ord. No. 92-19]
After filing the plat with the County the subdivider shall submit a signed and sealed translucent tracing and a signed and sealed cloth copy of the plat to the Department of Planning and Engineering.
At the time the Final Plat is submitted for signatures of Municipal Officials, the applicant shall submit a CAD-generated data tile(s), directly translatable into an identical image of the File Map, conforming to the following:
Media: The file(s) shall be submitted upon diskette(s), either 5.25"/1.2MG or 3.50"/1.44Mb, formatted for DOS Version 3.31 or later based IBM PC's and PC compatibles.
[Amended 6-10-92 by Ord. No. 92-19]
Format: The file shall be either:
a. An AutoCAD drawing file (i.e., a "DWG" Extension file) compatible with AutoCAD Release 11 or later; [Amended 6-10-92 by Ord. No. 92-19]
b. An ACSII Drawing Interchange File (i.e. a ".DXF" Extention file) compatible with AutoCAD Release 11 or later. [Amended 6-10-92 by Ord. No. 92-19]
At the discretion of the applicant, Department of Planning & Engineering staff can be requested to do the required conversion to CAD at a fee in accordance with the Township Fee Schedule contained in Town Code Section 132-32.
Whenever the East Brunswick Planning or Zoning Board shall reserve the location and extent of such street, ways, basins or areas shown on a plat submitted for subdivision or site plan approval, pursuant to N.J.S.A. 40:55D-44, the developer shall be entitled to just compensation for actual loss found to be caused by the temporary reservation and deprivation of use. Unless a lesser amount has previously been mutually agreed upon, just compensation shall be deemed to be the fair market value of an option to purchase land reserved for the period of reservation, including but not limited to the real property taxes apportioned to the land reserved and prorated for the period of reservation. The developer shall be compensated for the reasonable increased costs of legal, engineering or other professional services incurred in connection with obtaining subdivision approval or site plan approval, as the case may be, caused by the reservation. The township shall obtain an appraisal of the value of the option from a licensed real estate appraiser and shall disclose the fair market value of the option to the developer, provided that the developer shall also obtain a fair market value of the option and disclose the same to the township. The township shall require verification of increased costs of legal, engineering or other professional services incurred by the developer. In the event that the land which is reserved shall be the subject of an application for state or federal funding, all applicable state and federal laws and regulations shall govern the timetable which shall be implemented by the township.
A. In the event that a developer submits an application for development proposing a development that is barred or prevented, directly or indirectly, by a legal action instituted by any state agency, political subdivision or any other party to protect the public health and welfare or be a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health and welfare, the municipal agency shall process such application for development in accordance with this chapter, and, if such application for development complies with the requirements of this chapter, the approving authority shall approve such application conditioned on removal of such legal barrier to development.
B. In the event that development proposed by an application for development requires an approval by a governmental agency other than the approving authority, the approving authority shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that the approving authority shall make a decision on any application for development 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 approving authority is prevented or relieved from so acting by the operation of law.
In the event that, during the period of approval heretofore or hereafter granted to an application for development, 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 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.
A. Public Ownership
Common open space shall remain in private ownership, unless the appropriate Board determines that public ownership is desirable and unless the subdivider agrees to the necessary land donation, in which case ownership shall be in the Township of East Brunswick, or in such other public body as shall be deemed appropriate, provided that the township or such other public body shall approve such public ownership. In the event that the Board shall determine that there shall be public ownership of common open space but the subdivider or the public body shall not agree to the same or in the event that the Board shall not approve the form of private ownership of common open space, the Board may disapprove the application for subdivision with the reduction in lot area provisions of Article III of the Zoning Chapter. Standards for the Board determination as to public ownership shall include, but not be limited to, the following:
1. The need for public open space or recreational facilities in the areas determined by the Township Master Plan.
2. The potential for an open space connection between two (2) public open space areas.
3. The desirability of public access due to the peculiar physical characteristics of the area which make it suitable for public open space uses not otherwise available in that area.
4. Soil or vegetation characteristics of the area that provide a desirable public wildlife refuge.
All common open space shown on a preliminary plat shall be included in the first section submitted for final approval. However, in the case of a subdivision to be developed over a period of years, the Board may permit the total area proposed for common open space to be divided among the sections submitted for final plat approval, in which case the common open space appurtenant to each such section shall comply with the minimum common open space requirements as applied to each section.
B. Failure to maintain common open space
In the event that the organization established to own and maintain common open space, or any successor organization, shall at any time after its formation fail to maintain the common open space in reasonable order and condition in accordance with the approval granted by the Planning Board, the municipality may serve written notice upon such organization or upon the residents and owners of the cluster subdivision setting forth the manner in which the organization has failed to maintain the common space in reasonable condition. Said notice shall include a demand that such deficiencies of maintenance be cured within thirty (30) days thereof and shall state the date and place of a hearing thereon, which hearing shall be held within fourteen (14) days of the notice. At such hearing the municipality may modify the terms of the original notice as to the deficiencies and may give an extension of time within which they shall be cured. If the deficiencies set forth in the original notice or in the modifications there of shall not be cured within thirty (30) days or any extension thereof, the municipality, in order to preserve the taxable values of the properties within the cluster subdivision and to prevent the common open space from becoming a public nuisance, may enter upon said common open space and maintain the same for a period of one (1) year. Said entry and maintenance shall not vest in the public any rights to use the common open space except when the same is voluntarily dedicated to the public by the residents and owners. Before the expiration of said year, the municipality shall, upon its initiative or upon the request of the organization theretofore responsible for the maintenance of the common open space, call a public hearing upon notice to such organization or to the residents and owners of the cluster subdivision, to be held by the Health Officer, at which hearing such organization or the residents and owners of the cluster subdivision shall show cause why such maintenance by the municipality shall not, at the election of the municipality, continue for a succeeding year. If the Health Officer shall determine that such organization is not ready and able to maintain said common open space in a reasonable condition, the municipality may, in its discretion, continue to maintain said-common open space during the next succeeding year and, subject to a similar hearing and determination, in each year thereafter. The decision of the Health Officer in any such case shall constitute a final administrative decision subject to judicial review. The cost of such maintenance by the municipality shall be assessed ratably against the properties within the cluster subdivision that have a right of enjoyment of the common open space and shall become a tax lien on said properties. The municipality, at the time of entering upon said common open space for the purpose of maintenance, shall file a notice of such lien in the office of the County Clerk upon the properties affected by such lien within the cluster subdivision.
[Amended 6-10-92 by Ord. No. 92-1 9; 5-10-93 by Ord. No. 93-21; 10-2-95 by Ord. No. 95-34]
A. Performance Guarantee Required, Cost Estimate [Amended 5-10-93 by Ord. No. 93-21; 10-2-95 by Ord. No. 95-34]
No final plat or site plan shall be signed by the Planning or Zoning Board until the developer shall have filed with the township performance guarantees which shall guarantee and indemnify the Township of East Brunswick, and in addition to all surety bonds to be posted in an amount sufficient to cover the cost of all such improvements or uncompleted portions thereof, including as-builts, not to exceed 120% of the cost of installation, as determined by the Municipal Engineer, and assuring the installation of such uncompleted improvements on or before an agreed date. The municipal engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor. If the improvement is not completed within five years the amount of performance guarantee shall be adjusted by the amount of change in the Consumer Price Index from the date of first approval to the fifth anniversary. [Amended 5-10-93 by Ord. No. 93-211
The cost of the installation of improvements for the purposes of section 41 of P.L.1975, c.291 (C.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 county construction board of appeals established under section 9 of P.L.1975, c.217. [Amended 10-2-95 by Ord. No. 95-34]
All guarantees shall be in addition to and not in substitution for the developer's primary responsibility to install the improvements and complete the development in accordance with all rules, regulations, standards, specifications and ordinances of the Township of East Brunswick. Said standards shall be supplied by the Township at the time of board approval. All public improvements shall be constructed within two (2) years of the date of the performance guarantees. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the governing body 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 the installation, which cost shall be determined by the municipal engineer as of the time of the passage of the resolution. [Amended 5-10-93 by Ord. No. 93-21]
B. Form of Guarantee. [Amended 5-10-93 by Ord. No. 93-21]
The performance guarantees shall consist of cash or a certified check for not more than ten percent (10%) of the estimated cost of the improvements, and the balance of the cost shall be evidenced by a corporate surety performance bond issued by a corporation authorized to issue bonds in the State of New Jersey. If the developer chooses the entire amount may be posted with the Township in cash.
The approving authority shall, for the purposes of section 41 of P.L.1 975, c.291 (C.40:55D-53), accept a performance guarantee or maintenance guarantee 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, 1 975, c.291 (C.40:55D-53);
2. Is issued by a banking or savings institution authorized to do and doing business in this State with an AA rating; [Amended 5-10-93 by Ord. No. 9321]
3. Is for a period of time of at least one year; and
4. Permits the municipality to draw upon the letter of credit by certifying abandonment (default) of the project by passing of a resolution of the governing body or if the obligor 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. [Amended 5-10-93 by Ord. No. 93-21]
The performance guarantees shall be approved by the Municipal Attorney as to form, sufficiency and execution. The letter of credit shall be approved by the Township Finance Officer. [Added 5-10-93 by Ord. No. 93-21]
C. Uncompleted and unsatisfactory improvements, public hearing. [Amended 5-10-93 by Ord. No. 93-21]
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 the governing body in writing, by certified mail, 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 guarantee pursuant to subsection A. of this section, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy thereof to the Municipal Engineer. Thereupon the Municipal Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.
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 completed 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 Municipal Engineer and appended to the performance guarantee pursuant to subsection A. of this chapter. The Municipal Engineer shall schedule a public hearing, to be held at 8:00 p.m. on a weekday. The Municipal Engineer shall inform the Council and the obligor or use developer of the date of the hearing and the obligor or use developer shall be required to provide notice of at least fifteen (15) days by certified mail, return receipt requested, to all owners of land within the subdivision that there will be a public hearing concerning the public improvements covered by the performance guarantee. The notice will specify whether the obligor or use developer seeks to release or reduce the performance guarantees. The obligor or use developer shall cause to be published a notice of the public hearing in a newspaper circulated within the Township of East Brunswick, said publication to be at least ten (11 0) days prior to the date of the proposed hearing. The hearing shall be conducted by the Township Engineer and/or a representative of the Division of Construction Inspection. A Council representative shall attend the hearing. The obligor or use developer and its engineer are required to be present. At the hearing, members of the public shall be afforded the right to speak with regard to the public improvements. A list of concerns expressed by the homeowners shall be made part of a punch list to be included in a detailed report which the Municipal Engineer shall file, in writing, with the governing body. Verbatim minutes or an audio tape of the hearing shall be forwarded to the governing body. Following the inspection of the improvements by the Municipal Engineer and the public hearing, the engineer will include in his report to the governing body a recommendation indicating either approval, partial approval or rejection of such improvements with a statement of reasons for any rejection. The cost of the improvements as approved or rejected shall be set forth by the Municipal Engineer. Included within the report will be a synopsis of the public hearing.
The governing body shall notify the obligor or use developer of the date it will consider the matter and the obligor or use developer will give at least 1 0 days notice of the Council meeting to all owners of land within the subdivision.
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 guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to this chapter. 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 obligor or use developer shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion sufficient to secure completion or correction of the improvements not yet approved; provided that thirty (30%) per cent of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements. The governing body may retain an amount not to exceed one hundred twenty (11 20%) per cent of the cost of installation for improvements it may deem necessary or appropriate.
If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to this chapter within 45 days from receipt of the request, the obligor 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 attorney's fee, 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 guarantee for the complete and satisfactory improvements within 45 days from the receipt of the Municipal Engineers list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to subsection A. of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
In the event that the obligor has made a cash deposit with the municipality 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 governing body may require the obligor or use developer 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.
Reduction of a bond or security, no lower than twenty (20%) per cent of its initial value, can be accomplished by resolution of the Township Council without public hearing or notice, upon certification of the Township Engineer and the Division of Construction Inspection that the improvements for which reduction is requested have been completed. No reduction in the amount of any bond shall be granted despite the installation of any improvements, unless the amount to which the bond is to be reduced shall be not less than one hundred twenty (1 20%) per cent of the cost at that time of installing all remaining improvements for which the bond was originally posted.
D. Escrow agreement: obligor liable.
The cash security referred to above shall be held by the municipality in accordance with an escrow agreement between the obligor and the township, which shall be executed and submitted with the applicant's request for final approval. Among other things, the escrow agreement shall provide for the use of the funds by the township, after thirty (30) days' written notice, where the obligor has failed to construct or install the improvements in accordance with all the rules, regulations, specifications and ordinances of the township or within the period provided for by the Planning Board, but the use or failure to use the cash security referred to above shall in no way affect or alter the obligation on the performance or maintenance bonds required under this subsection. 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 municipality for the reasonable cost of the improvements not completed or corrected and the municipality may either prior to or after the receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.). Reasonable cost shall include costs the Township incurs to force performance under the performance guarantee. The cash posted shall be used for this purpose and if insufficient cash is remaining, the performance bond wording shall include provisions for recovery against the performance guarantee.
E. Dedicated improvements.
To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to this chapter, to accept dedication for public use of street or roads and any other improvements made thereof 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 Municipal Engineer. Prior to acceptance, the developer shall be responsible for all maintenance of improvements, including streets and roads, street lighting, snow plowing, curbs and sidewalks, waterlines, storm sewers and any other improvements which were installed. Nothing contained herein shall relieve the developer of the obligation to post maintenance guarantees in accordance with all requirements.
Upon completion of all the improvements in a good and workmanlike manner and in accordance with all rules, regulations, standards, specifications and ordinances of the township and the filing of as-built drawings, the township will accept the improvements subject to the deposit and posting of maintenance guarantees in an amount equal to fifteen percent (1 5%) of the estimated cost of construction, which cost shall be determined by the Municipal Engineer. The security for maintenance shall be held by the municipality in accordance with an escrow agreement similar to the escrow agreement referred to above. Maintenance guarantees shall be approved by the Municipal Attorney as to form, sufficiency and execution, and such guarantee shall run for a period of two (2) years. Under no circumstances shall the township pay or be liable for any interest on any funds deposited with the township as a performance or maintenance guarantee.
No maintenance bond shall be accepted for any item that has further stages of work or which will need to be altered or reworked.
G. Uncompleted improvements.
If, in the event of inclement weather or construction delays not occasioned by any act of the developer, subdivider, builder, or successor, it shall be impossible to install the required sidewalks, streetlighting, surveyors' monuments, shade trees and landscaping at the time that a certificate of occupancy is applied for, the applicant shall furnish the Chief Construction Official with an acknowledgment executed by the prospective home buyer setting forth the improvements or portions thereof that are not as yet installed and that the home buyer is agreeable to taking title and possession of the dwelling in that condition in reliance upon the existing performance guarantees posted pursuant hereto and the terms and provisions of this subsection. Should those uncompleted improvements referred to above not be installed within six (6) months after the date of the issuance of the certificate of occupancy, the Township Council of the Township of East Brunswick, upon the recommendation of the Township Engineer, may authorize, by resolution, that the performance guarantees posted pursuant hereto be utilized by the Township of East Brunswick for the purpose of installing such uncompleted improvements. [Amended 5-10-93 by Ord. No. 93-211
H. Cluster subdivision.
Prior to the granting of approval of a final plat of a duster subdivision, the subdivider shall have installed or, at the option of the Planning Board, shall have furnished performance guarantees for the ultimate installation of the following:
1. Such grading, drainage, planting, walkways, fencing and lighting of the common open space as shall be deemed appropriate by the Planning Board to enhance the intended open space uses.
2. Such other improvements in the common open space as shall be proposed by the subdivider and approved by the Planning Board.
3. Where such improvements include trees, shrub or ground covers, the same shall consist of varieties and shall be planted in accordance with standards approved by the Planning Board and on file in the office of the Township Engineer.
[Added 1112-91 by Ord. No. 91-111; amended 5-10-93 by Ord. No. 93-21; 3-8-99 by Ord. No. 99-12].
A. Prior to construction of any of the improvements referred to above specifically, the commencement of any preparatory site work, including but not limited to clearance of the property, grading or excavation or the signing of the final subdivision or site plan, whichever occurs first, the developer shall deposit with the township a sum equal to five percent (5%) of the cost of the improvements but not more than four thousand, nine hundred and ninety-nine dollars ($4,999), which shall be used to pay the costs of inspection and testing fees incurred by the township. In the event that the costs of inspection and testing are less than the amount deposited, the balance shall be refunded to the subdivider. If the costs are greater than the amount deposited, the township shall require additional deposits as necessary. The following fee schedule shall be charged:
(1) Township employees:
(a) Up to eight (8) hours in a single weekday: Seventy five dollars per hour ($75.00/Hour).
(b) Beyond eight (8) hours in a single weekday: One hundred twelve dollars per hour ($112.00/Hour)
(c) Saturday: One hundred twelve dollars per hour ($112.00/Hour)
(d) Legal township holiday: One hundred eighty-seven dollars per hour ($187.00/Hour)
Inspection time will be rounded to the next half (1/2) hour for billing purposes. Inspections for Saturdays and holidays must be pre-approved by Assistant Township Engineer prior to scheduling.
(2) Testing laboratory: cost to the township.
(3) Outside Consulting Services:
When the Township deems it necessary to retain outside professional services, the developer shall reimburse the Township for all reasonable professional consulting fees.
B. For those subdivision and site plans 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 municipal 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 municipal engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The municipal engineer shall not permit any construction requiring inspection if sufficient funds to pay for those inspections are not on deposit.
C. Construction Within Township Right-of-Way: A Right-of-Way Permit shall be required for all construction work located within the Township right-of-way including sidewalks, curb aprons and curbs adjacent to roadways. The permit fee shall be twenty-five ($25.00) dollars.
**Webmasters Note: The previous section has been amended as per Ordinance No. 05-29.
