Bill Text: NJ A1874 | 2014-2015 | Regular Session | Introduced
Bill Title: Makes various technical and procedural amendments to the "Municipal Land Use Law."
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-16 - Introduced, Referred to Assembly State and Local Government Committee [A1874 Detail]
Download: New_Jersey-2014-A1874-Introduced.html
STATE OF NEW JERSEY
216th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2014 SESSION
Sponsored by:
Assemblyman JOHN J. BURZICHELLI
District 3 (Cumberland, Gloucester and Salem)
SYNOPSIS
Makes various technical and procedural amendments to the "Municipal Land Use Law."
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act revising the "Municipal Land Use Law," amending P.L.1991, c.256, P.L.1995, c.54 and P.L.1995, c.249, and amending and supplementing P.L.1975, c.291 and P.L.1977, c.336.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3 of P.L.1975, c.291 (C.40:55D-3) is amended to read as follows:
3. For the purposes of this act, unless the context clearly indicates a different meaning:
The term "shall" indicates a mandatory requirement, and the term "may" indicates a permissive action.
"Administrative officer" means the clerk of the municipality, unless a different municipal official or officials are designated by ordinance or statute.
"Agricultural land" means "farmland" as defined pursuant to section 3 of P.L.1999, c.152 (C.13:8C-3).
"Applicant" means a developer submitting an application for development.
"Application for development" means the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance or direction of the issuance of a permit pursuant to section 25 or section 27 of P.L.1975, c.291 (C.40:55D-34 or C.40:55D-36) or an application or appeal to the board of adjustment for a certification of a prior nonconforming use or structure pursuant to section 55 of P.L.1975, c.291 (C.40:55D-68).
"Approving authority" means the planning board of the municipality, unless a different agency is designated by ordinance when acting pursuant to the authority of P.L.1975, c.291 (C.40:55D-1 et seq.).
"Board of adjustment" means the board established pursuant to section 56 of P.L.1975, c.291 (C.40:55D-69).
"Building" means a combination of materials to form a construction adapted to permanent, temporary, or continuous occupancy and having a roof.
"Cable television company" means a cable television company as defined pursuant to section 3 of P.L.1972, c.186 (C.48:5A-3).
"Capital improvement" means a governmental acquisition of real property or major construction project.
"Circulation" means systems, structures and physical improvements for the movement of people, goods, water, air, sewage or power by such means as streets, highways, railways, waterways, towers, airways, pipes and conduits, and the handling of people and goods by such means as terminals, stations, warehouses, and other storage buildings or transshipment points.
"Common open space" means an open space area within or related to a site designated as a development, and designed and intended for the use or enjoyment of residents and owners of the development. Common open space may contain such complementary structures and improvements as are necessary and appropriate for the use or enjoyment of residents and owners of the development.
"Conditional use" means a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board.
"Conventional" means development other than planned development.
"County agriculture development board" or "CADB" means a county agriculture development board established by a county pursuant to the provisions of section 7 of P.L.1983, c.32 (C.4:1C-14).
"County master plan" means a composite of the master plan for the physical development of the county in which the municipality is located, with the accompanying maps, plats, charts and descriptive and explanatory matter adopted by the county planning board pursuant to R.S.40:27-2 and R.S.40:27-4.
"County planning board" means the county planning board, as defined in section 1 of P.L.1968, c.285 (C.40:27-6.1), of the county in which the land or development is located.
(cf: P.L. 2004, c.2, s.32)
2. Section 3.2 of P.L.1975, c.291 (C.40:55D-5) is amended to read as follows.
3.2. "Maintenance guarantee" means any security which may be accepted by a municipality for the maintenance of any improvements required by this act, including but not limited to surety bonds, letters of credit under the circumstances specified in section 16 of P.L.1991, c.256 (C.40:55D-53.5), and cash.
"Major subdivision" means any subdivision not classified as a minor subdivision.
"Master plan" means a composite of one or more written or graphic proposals for the development of the municipality as set forth in and adopted pursuant to section 19 of P.L.1975, c.291 (C.40:55D-28).
"Mayor" means the chief executive of the municipality, whatever his official designation may be, except that in the case of municipalities governed by municipal council and municipal manager the term "mayor" shall not mean the "municipal manager" but shall mean the mayor of such municipality.
"Military facility" means any facility located within the State which is owned or operated by the federal government, and which is used for the purposes of providing logistical, technical, material, training, and any other support to any branch of the United States military.
"Military facility commander" means the chief official, base commander or person in charge at a military facility.
"Minor site plan" means a development plan of one or more lots which (1) proposes new development within the scope of development specifically permitted by ordinance as a minor site plan; (2) does not involve planned development, any new street or extension of any off-tract improvement which is to be prorated pursuant to section 30 of P.L.1975, c.291 (C.40:55D-42); and (3) contains the information reasonably required in order to make an informed determination as to whether the requirements established by ordinance for approval of a minor site plan have been met.
"Minor subdivision" means a subdivision of land for the creation of a number of lots specifically permitted by ordinance as a minor subdivision; provided that such subdivision does not involve (1) a planned development, (2) any new street or (3) the extension of any off-tract improvement, the cost of which is to be prorated pursuant to section 30 of P.L.1975, c.291 (C.40:55D-42).
"Municipality" means any city, borough, town, township or village.
"Municipal agency" means a municipal planning board or board of adjustment, or a governing body of a municipality when acting pursuant to this act and any agency which is created by or responsible to one or more municipalities when such agency is acting pursuant to this act.
"Municipal resident" means a person who is domiciled in the municipality.
"Nonconforming lot" means a lot, the area, dimension or location of which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.
"Nonconforming structure" means a structure the size, dimension or location of which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment.
"Nonconforming use" means a use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment.
"Non-profit organization" means a non profit corporation, non profit partnership, charitable trust or conservancy or other non profit or not-for- profit entity.
"Office of Smart Growth" means the Office of State Planning established pursuant to section 6 of P.L.1985, c.398 (C.52:18A-201).
"Official county map" means the map, with changes and additions thereto, adopted and established, from time to time, by resolution of the board of chosen freeholders of the county pursuant to R.S.40:27-5.
"Official map" means a map adopted by ordinance pursuant to article 5 of P.L.1975, c.291.
"Offsite" means located outside the lot lines of the lot in question but within the property, of which the lot is a part, which is the subject of a development application or the closest half of the street or right-of-way abutting the property of which the lot is a part.
"Off-tract" means not located on the property which is the subject of a development application nor on the closest half of the abutting street or right-of-way.
"Onsite" means located on the lot in question and excluding any abutting street or right-of-way.
"On-tract" means located on the property which is the subject of a development application or on the closest half of an abutting street or right-of-way.
"Open-space" means any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space; provided that such areas may be improved with only those buildings, structures, streets and offstreet parking and other improvements that are designed to be incidental to the natural openness of the land.
"Organization" means a corporation, partnership, trust, limited liability company, limited liability partnership, limited partnership, or any other for-profit entity.
(cf: P.L.2005, c.41, s.2)
3. Section 5 of P.L.1975, c.291 (C.40:55D-9) is amended to read as follows:
5. [Meetings; municipal agency.] a. Every municipal agency shall by its rules and regulations fix the time and place for holding its regular meetings for business authorized to be conducted by such agency. Regular meetings of the municipal agency shall be scheduled not less than once a month and shall be held as scheduled unless canceled for lack of applications for development to process. The municipal agency may provide for special meetings, at the call of the chairman, or on the request of any two of its members, which shall be held on notice to its members and the public in accordance with [municipal] the rules and regulations of the municipal agency. No action shall be taken at any meeting without a quorum being present. All actions shall be taken by a majority vote of the members of the municipal agency present at the meeting, except as otherwise required by sections 21, 23, 25, [49,] and 50[,] ; and [subsections 8e., 17a., 17b. and 57d.] subsection e. of section 8, subsections a. and b. of section 17, subsection a. of section 49 and subsection d. of section 57 of [this act] P.L.1975, c.291 (C.40:55D-30, C.40:55D-32, C.40:55D-34, and C.40:55D-38; and C.40:55D-17, C.40:55D-26 , C.40:55D-62, and C.40:55D-70), subsection e. of section 17 of P.L.1985, c.516 (C.40:55D-85.1), and section 7 of P.L.2004, c.2 (C.40:55D-143). Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application. Nothing herein shall be construed to contravene any act providing for procedures for governing bodies.
b. 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 rules and regulations of the municipal [regulations. An executive session for the purpose of discussing and studying any matters to come before the agency shall not be deemed a regular or special meeting within the meaning of this act] agency.
c. Minutes of every regular or special meeting shall be kept and shall include the names of persons appearing and addressing the municipal agency and of the persons appearing by attorney, the action taken by the municipal agency, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the administrative officer. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party may be charged a reasonable fee for reproduction of the minutes for his use.
(cf: P.L.1985, c.516, s.3)
4. Section 6 of P.L.1975, c.291 (C.40:55D-10) is amended to read as follows:
6. [Hearings.] a. The municipal agency shall hold a hearing on each application for development, adoption, revision or amendment of the master plan, each application for approval of an outdoor advertising sign submitted to the municipal agency as required pursuant to an ordinance adopted under subsection g. of section 29.1 of P.L.1975, c.291 (C.40:55D-39) or any review undertaken by a planning board pursuant to section 22 of P.L.1975, c.291 (C.40:55D-31).
b. The municipal agency shall make the rules governing such hearings. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing, during normal business hours in the office of the administrative officer. The applicant may produce other documents, records, or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
c. The officer presiding at the hearing or such person as he may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the "County and Municipal Investigations Law," P.L.1953, c.38 (C.2A:67A-1 et seq.) shall apply.
d. 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.
e. Technical rules of evidence shall not be applicable to the hearing, but the agency may exclude irrelevant, immaterial or unduly repetitious evidence.
f. The municipal agency shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The municipal agency shall furnish a transcript, or duplicate recording in lieu thereof, on request to any interested party at his expense; provided that the governing body may provide by ordinance for the municipality to assume the expense of any transcripts necessary for appeal to the governing body, pursuant to section 8 of [this act] P.L.1975, c.291 (C.40:55D-17), of decisions by the zoning board of adjustment pursuant to subsection [57d.] d. of section 57 of [this act] P.L.1975, c.291 (C.40:55D-70), up to a maximum amount as specified by the ordinance.
The municipal agency, in furnishing a transcript or tape of the proceedings to an interested party at his expense, shall not charge such interested party more than the actual cost of preparing the transcript or tape. Transcripts shall be certified in writing by the transcriber to be accurate.
g. The municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through:
(1) A resolution adopted at a meeting held within the time period provided in the act for action by the municipal agency on the application for development; or
(2) A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. If only one member who voted for the action attends the meeting at which the resolution is presented for adoption, the resolution may be adopted upon the vote of that member. An action pursuant to section 5 of [the act] P.L.1975, c.291 (C.40:55D-9) (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required by subsections h. and i. of this section (C.40:55D-10). If the municipal agency fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorney's fees, shall be assessed against the municipality.
h. A copy of the decision shall be mailed by the municipal agency within 10 days of the date of decision to the applicant or, if represented, then to his attorney, without separate charge, and to all who request a copy of the decision, for a reasonable fee. A copy of the decision shall also be filed by the municipal agency in the office of the administrative officer within 10 days of the date of decision. The administrative officer shall maintain a record of every decision of the municipal agency and shall index each decision by reference to lot and block numbers as shown on the tax duplicate in effect on the date of the decision. The administrative officer shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at his office during reasonable hours.
i. A brief notice of the decision shall be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained in [this act] P.L.1975, c.291 (C.40:55D-1 et seq.) shall be construed as preventing the applicant from arranging such publication if he so desires. The municipality may make a reasonable charge for its publication. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the municipality or the applicant.
(cf: P.L.2004, c.42, s.5)
5. Section 7.1 of P.L.1975, c.291 (C.40:55D-12) is amended to read as follows:
7.1. Notice pursuant to subsections a., b., d., e., f., g. and h. of this section shall be given by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained herein shall prevent the applicant from giving such notice if he so desires. Notice pursuant to subsections a., b., d., e., f., g. and h. of this section shall be given at least 10 days prior to the date of the hearing.
a. (1) Public notice of a hearing shall be given:
(a) of an application seeking the [for an] extension of approvals which, taken together with previously approved extensions, would extend the approval for a period of five or more years from the date of the original approval under subsection d. of section 37 of P.L.1975, c.291 (C.40:55D-49) and subsection b. of section 40 of P.L.1975, c.291 (C.40:55D-52); [for]
(b) of an application seeking the modification or elimination of a significant condition or conditions in a memorializing resolution in any situation wherein the application for development for which the memorializing resolution is proposed for adoption required public notice[,];
(c) of an application seeking a certification of a prior nonconforming use or structure pursuant to section 55 of P.L.1975, c.291 (C.40:55D-68); and
(d) for any other applications for development, with the following exceptions:
[(1)] (i) conventional site plan review pursuant to section 34 of P.L.1975, c.291 (C.40:55D-46),
[(2)] (ii) minor subdivisions pursuant to section 35 of P.L.1975, c.291 (C.40:55D-47), or
[(3)] (iii) final approval pursuant to section 38 of P.L.1975, c.291 (C.40:55D-50) [; notwithstanding] .
(2) Notwithstanding the foregoing, the governing body may by ordinance require public notice:
(a) for such categories of site plan review as may be specified by ordinance,
(b) for appeals of determinations of administrative officers pursuant to subsection a. of section 57 of P.L.1975, c.291 (C.40:55D-70), and
(c) for requests for interpretation pursuant to subsection b. of section 57 of P.L.1975, c.291 (C.40:55D-70).
(3) Public notice shall also be given in the event that relief is requested pursuant to section 47 or 63 of P.L.1975, c.291 (C.40:55D-60 or C.40:55D-76) as part of an application for development otherwise excepted herein from public notice.
(4) In addition, public notice shall be given by a public entity seeking to erect an outdoor advertising sign on land owned or controlled by a public entity as required pursuant to section 22 of P.L.1975, c.291 (C.40:55D-31) or, if so provided by ordinance adopted pursuant to subsection g. of section 29.1 of P.L.1975, c.291 (C.40:55D-39), by a private entity seeking to erect an outdoor advertising sign on public land or on land owned by a private entity.
(5) Public notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.
b. (1) Except as provided in paragraph (2) of subsection h. of this section, notice of a hearing requiring public notice pursuant to subsection a. of this section shall be given to the owners of all real property as shown on the current tax duplicates, located in the State and within 200 feet in all directions of the property which is the subject of such hearing; provided that this requirement shall be deemed satisfied by notice to the:
[(1)] (a) condominium association, in the case of any unit owner whose unit has a unit above or below it, or
[(2)] (b) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it.
(2) Notice shall be given by:
[(1)] (a) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or
[(2)] (b) mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate.
(3) Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further
notice to unit owners, co-owners, or homeowners on account of such common elements or areas.
c. Upon the written request of an applicant, the administrative officer of a municipality shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to subsection b. of this section. In addition, the administrative officer shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to subsection h. of this section. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner, to any public utility, cable television company, or local utility or to any military facility commander not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name, or $10.00, whichever is greater, may be charged for such list.
d. Notice of hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality.
e. Notice shall be given by personal service or certified mail to the county planning board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the official county map or on the county master plan, adjoining other county land or situated within 200 feet of a municipal boundary.
f. Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a State highway.
g. Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. The notice shall include a copy of any maps or documents required to be on file with the municipal clerk pursuant to subsection b. of section 6 of P.L.1975, c.291 (C.40:55D-10).
h. Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan under [this act] P.L.1975, c.291 (C.40:55D-1 et seq.) requiring public notice pursuant to subsection a. of this section shall be given: (1) in the case of a public utility, cable television company or local utility which possesses a right-of-way or easement within the municipality and which has registered with the municipality in accordance with section 5 of P.L.1991, c.412 (C.40:55D-12.1), by (i) serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility or (ii) mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form; (2) in the case of a military facility which has registered with the municipality and which is situated within 3,000 feet in all directions of the property which is the subject of the hearing, by (i) serving a copy of the notice on the military facility commander whose name appears on the registration form or (ii) mailing a copy thereof by certified mail to the military facility commander at the address shown on that form.
i. The applicant shall file an affidavit of proof of service with the municipal agency holding the hearing on the application for development in the event that the applicant is required to give notice pursuant to this section.
j. Notice pursuant to subsections d., e., f., g. and h. of this section shall not be deemed to be required, unless public notice pursuant to subsection a. and notice pursuant to subsection b. of this section are required.
(cf: P.L.2005, c.41, s.3)
6. Section 16 of P.L.1975, c.291 (C.40:55D-25) is amended to read as follows:
16. a. The planning board shall follow the provisions of [this act] P.L.1975, c.291 (C.40:55D-1 et seq.) and shall accordingly exercise its power in regard to:
(1) The master plan pursuant to article 3;
(2) Subdivision control and site plan review pursuant to article 6;
(3) The official map pursuant to article 5;
(4) The zoning ordinance including conditional uses pursuant to article 8;
(5) The capital improvement program pursuant to article 4;
(6) Variances and certain building permits in conjunction with subdivision, site plan and conditional use approval pursuant to article 7.
b. The planning board may:
(1) Participate in the preparation and review of programs or plans required by State or federal law or regulation;
(2) Assemble data on a continuing basis as part of a continuous planning process; [and]
(3) Perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the governing body or other agencies or officers;
(4) (a) Establish committees consisting of less than a quorum of board members, with or without the board's attorney, experts and technical staff, for the purpose of reviewing an application for development filed with the board, except when reviewing a variance, pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70). Any such committee may review procedural or substantive issues relating to the application for development or changes suggested by the technical staff with the applicant, the applicant's professionals or both prior to the commencement of a public hearing on the application. Any matter considered or discussed by the committee or any recommendation made by the committee shall not be binding on either the board or the applicant. A meeting of any such committee shall not constitute a meeting of the board, and notice shall not be required.
(b) Nothing herein shall be construed to prevent or prohibit a board's attorney, experts and technical staff from meeting with the applicant's counterparts before or after commencement of a public hearing on an application; and
(5) Meet jointly with the governing body, zoning board of adjustment, or both, for the purpose of discussing the annual report prepared pursuant to section 16 of P.L.1985, c.516 (C.40:55D-70.1).
c. (1) In a municipality having a population of 15,000 or less, a nine-member planning board, if so provided by ordinance, shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment; but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70).
(2) In any municipality, a nine-member planning board, if so provided by ordinance, subject to voter referendum, shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment; but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70).
d. In a municipality having a population of 2,500 or less, the planning board, if so provided by ordinance, shall exercise, to the same extent and subject to the same restrictions, all of the powers of an historic preservation commission, provided that at least one planning board member meets the qualifications of a Class A member of an historic preservation commission and at least one member meets the qualifications of a Class B member of that commission.
e. In any municipality in which the planning board exercises the power of a zoning board of adjustment pursuant to subsection c. of this section, a zoning board of adjustment may be appointed pursuant to law, subject to voter referendum permitting reconstitution of the board. The public question shall be initiated through an ordinance adopted by the governing body.
(cf: P.L.1999, c.27, s.1)
7. Section 35 of P.L.1975, c.291 (40:55D-47) is amended to read as follows:
35. a. [Minor subdivision.] An ordinance requiring approval of subdivisions by the planning board may authorize the planning board to waive notice and public hearing for an application for development if the planning board or subdivision committee of the board appointed by the chairman find that the application for development conforms to the definition of "minor subdivision" in section 3.2 of P.L.1975, c.291 (C.40:55D-5). Minor subdivision approval shall be deemed to be final approval of the subdivision by the board; provided that the board or said subcommittee may condition such approval on terms ensuring the provision of improvements pursuant to sections 29, 29.1, 29.2 and 41 of P.L.1975, c.291 (C.40:55D-38, C.40:55D-39, C.40:55D-40, and C.40:55D-53).
b. Minor subdivision approval shall be granted or denied within 45 days of the date of submission of a complete application to the administrative officer, or within such further time as may be consented to by the applicant. Failure of the planning board to act within the period prescribed shall constitute minor subdivision approval and a certificate of the administrative officer as to the failure of the planning board to act shall be issued on request of the applicant; and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
c. Whenever review or approval of the application by the county planning board is required by section 5 of P.L.1968, c.285 (C.40:27-6.3), the municipal planning board shall condition any approval that it grants upon timely receipt of a favorable report on the application by the county planning board or approval by the county planning board by its failure to report thereon within the required time period.
d. Except as provided in subsection f. of this section, 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. In reviewing the application for development for a proposed minor subdivision the planning board may be permitted by ordinance to accept a plat not in conformity with the "Map Filing Law," P.L.1960, c.141 (C.46:23-9.9 et seq.); provided that if the developer chooses to file the minor subdivision as provided herein by plat rather than deed such plat shall conform with the provisions of said act.
e. 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 two years after the date on which the resolution of minor subdivision approval is adopted; provided that the approved minor subdivision shall have been duly recorded as provided in this section.
f. The planning board may extend the 190-day period for filing a minor subdivision plat or deed pursuant to subsection d. of this section if the developer proves to the reasonable satisfaction of the planning board
(1) that good cause exists for a single extension not to exceed an additional 190 days from the date of expiration; or
(2) 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] , in which case 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 [the] an extension pursuant to paragraph (1) or (2) of this subsection either before or after what would otherwise be the expiration date.
g. The planning 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.
(cf: P.L.1991, c.256, s.9)
8. Section 1 of P.L.1977, c.336 (C.40:55D-48.1) is amended to read as follows:
1. [A corporation or partnership applying to a planning board or a board of adjustment or to the governing body of a municipality for permission to subdivide a parcel of land into six or more lots, or applying for a variance to construct a multiple dwelling of 25 or more family units or for approval of a site to be used for commercial purposes] An application for development submitted by an organization, as defined in section 3.2 of P.L.1975, c.291 (C. 40:55D-5), shall list the names and addresses of all members, stockholders or individual partners [owning] holding at least a 10% [of its stock of any class or at least 10% of the] ownership interest in the [partnership, as the case may be] organization, including any other organization holding at least a 10% ownership interest in the organization submitting the application for development, and shall also identify the owner of the property that is the subject of the application for development, including any organization holding at least a 10% ownership interest in the property.
(cf: P.L.1977, c.336, s.1)
9. Section 2 of P.L.1977, c.336 (C.40:55D-48.2) is amended to read:
2. If [a corporation or partnership] an organization owns an interest equivalent to 10% or more of [the stock of a corporation, or 10% or greater interest in a partnership,] an organization that is subject to the disclosure requirements pursuant to section 1 of [this act] P.L.1977, c.336 (C.40:55D-48.1), that [corporation or partnership] organization shall list the names and addresses of its [stockholders] interest holders holding 10% or [more of its stock or of 10% or] greater interest in the [partnership, as the case may be, and this requirement shall be followed by every corporate stockholder or partner in a partnership, until the names and addresses of the noncorporate stockholders and individual partners, exceeding the 10% ownership criterion established in this act, have been listed] organization.
(cf: P.L.1977, c.336, s.2)
10. (New section) An application for development submitted by a non-profit organization shall list the names and addresses of all officers and trustees of the non-profit organization.
11. Section 3 of P.L. 1977, c.336 (C.40:55D-48.3) is amended to read as follows:
3. a. No municipal planning board, board of adjustment or [municipal] governing body shall approve the application of any [corporation or partnership] organization or non-profit organization which does not comply with [this act] P.L.1977, c.336 (C.40:55D-48.1 et seq.). Any approval not in compliance with P.L.1977, c.336 (C.40:55D-48.1 et seq.) shall be voidable in proceeding in lieu of prerogative writ in the Superior Court.
b. Any party, including any member of the public, may institute a proceeding in lieu of prerogative writ in the Superior Court to challenge any approval granted by a municipal planning board, board of adjustment, or governing body on the grounds that such action is void for the reasons stated in subsection a. of this section, and if the court shall find that the approval was not in compliance with P.L.1977, c.336 (C.40:55D-48.1 et seq.), the court may declare the approval to be void.
(cf: P.L.1977, c. 336, s. 3)
12. Section 4 of P.L.1977, c.336 (C.40:55D-48.4) is amended to read as follows:
4. Any [corporation or partnership which conceals the names of the stockholders owning 10% or more of its stock, or of the individual partners owning a 10% or greater interest in the partnership, as the case may be,] organization or non-profit organization failing to disclose in accordance with P.L.1977, c.336 (C.40:55D-48.1 et seq.), shall be subject to a fine of $1,000.00 to $10,000.00 which shall be [recovered] recoverable in the name of the municipality in any court of record in the State in a summary manner pursuant to ["The Penalty Enforcement Law" (N.J.S. 2A:58-1 et seq.)] the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
(cf: P.L.1977, c. 336, s. 4)
13. Section 3 of P.L.1995 c.54 (C.40:55D-53.2a) is amended to read as follows:
3. a. An applicant shall [notify] in writing and by certified mail, notify the governing body with copies to the chief financial officer of the municipality, the approving authority and the professional whenever the applicant disputes the charges made by a professional for service rendered to the municipality in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the provisions of P.L.1975, c.291 (C.40:55D-1 et seq.). The governing body, or its designee, shall, within [a reasonable time period] 60 days of receipt of the written notification, attempt to remediate any disputed charges. The governing body or its designee shall within said 60-day period either affirm or modify the charges for such services and shall furnish the applicant with a written statement of its decision, by certified mail. Failure to make a decision within said 60-day period shall constitute an affirmance of the charges made by the professional. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the county construction board of appeals established under section 9 of P.L.1975, c.217 (C.52:27D-127) any charge to an escrow account or a deposit by any municipal professional or consultant, or the cost of the installation of improvements estimated by the municipal engineer pursuant to section 15 of P.L.1991, c.256 (C.40:55D-53.4). An applicant or his authorized agent shall submit the appeal in writing to the county construction board of appeals. The applicant or his authorized agent shall simultaneously send a copy of the appeal by certified mail to the municipality, approving authority, and any professional whose charge is the subject of the appeal. An applicant shall file an appeal within 45 days from [receipt of the informational copy of the professional's voucher required by subsection c. of section 13 of P.L.1991, c.256 (C.40:55D-53.2), except that if the professional has not supplied the applicant with an informational copy of the voucher, then the applicant shall file his appeal within 60 days from receipt of the municipal statement of activity against the deposit or escrow account required by subsection c. of section 13 of P.L.1991, c.256 (C.40:55D-53.2)] the date of receipt of a copy of the written statement of the decision of the governing body or its designee as hereinabove provided or the date upon which the 60-day period expired without a determination by the governing body or its designee. An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An applicant making use of this provision need not appeal each charge individually.
b. The county construction board of appeals shall hear the appeal, render a decision thereon, and file its decision with a statement of the reasons therefor with the municipality or approving authority not later than [10 business] 45 days following the submission of the appeal, unless such period of time has been extended with the consent of the applicant. The decision may approve, disapprove, or modify the professional charges appealed from. A copy of the decision shall be forwarded by certified or registered mail to the party making the appeal, the municipality, the approving authority, and the professional involved in the appeal. Failure by the board to hear an appeal and render and file a decision thereon within the time limits prescribed in this subsection shall be deemed a denial of the appeal for purposes of a complaint, application, or appeal to a court of competent jurisdiction.
c. The county construction board of appeals shall provide rules for its procedure in accordance with this section. The board shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, and the provisions of the "County and Municipal Investigations Law," P.L.1953, c.38 (C.2A:67A-1 et seq.) shall apply.
d. During the pendency of any appeal, the municipality or approving authority shall continue to process, hear, and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance or maintenance guarantees, the issuance of construction permits or certificates of occupancy, or any other approval or permit because an appeal has been filed or is pending under this section. The chief financial officer of the municipality may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment, the chief financial officer of the municipality shall reimburse the deposit or escrow account in the amount of any such disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment to a professional or consultant who is not an employee of the municipality, the professional or consultant shall reimburse the municipality in the amount of any such disallowed charge.
e. The Commissioner of Community Affairs shall promulgate rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to effectuate the purposes of this section. Within two years of the effective date of P.L.1995, c.54 (C.40:55D-53.2a et al.), the commissioner shall prepare and submit a report to the Governor, the President of the Senate, and the Speaker of the General Assembly. The report shall describe the appeals process established by section 3 of P.L.1995, c.54 (C.40:55D-53.2a) and shall make recommendations for legislative or administrative action necessary to provide a fair and efficient appeals process.
(cf: P.L.1995, c.54, s.3)
14. Section 2 of P.L.1995, c.249 (C.40:55D-62.1) is amended to read as follows:
2. a. Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in
(1) a master plan pursuant to section 19 of P.L.1975, c.291 (C.40:55D-28), or
(2) a periodic general reexamination of the master plan by the planning board pursuant to section 76 of P.L.1975, c.291 (C.40:55D-89) after notice pursuant to section 7.2 of P.L.1975, c.291 (C.40:55D-13) and a hearing pursuant to section 6 of P.L.1975, c.291 (C.40:55D-10),
shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.
b. In addition, such notice shall be provided to any military facility commander who has registered with the municipality pursuant to section 1 of P.L.2005, c.41 (C.40:55D-12.4), if the military facility is situated within the district or within 3,000 feet of all directions of the boundaries of the district or located, in the case of a boundary change, in the State within 3,000 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.
c. A notice pursuant to this section shall state the date, time and place of the hearing, the nature of the matter to be considered and an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office.
d. Notice shall be given by: (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail and regular mail to the property owner at his address as shown on the said current tax duplicate. In the case of a change involving a military facility situated within or in proximity to the district as provided herein, notice shall be given by serving a copy thereof on the military facility commander who has registered with the municipality pursuant to section 1 of P.L.2005, c.41 (C.40:55D-12.4) or mailing a copy by certified mail to the military facility commander at the address shown on the registration form.
e. Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the boundaries of the district which is the subject of the hearing, may be made in the same manner as to a corporation, in addition to notice to unit owners, co-owners, or homeowners on account of such common elements or areas.
f. The municipal clerk shall execute affidavits of proof of service of the notices required by this section, and shall keep the affidavits on file along with the proof of publication of the notice of the required public hearing on the proposed zoning ordinance change. Costs of the notice provision shall be the responsibility of the proponent of the amendment.
(cf: P.L.2005, c.41, s.4)
15. Section 20 of P.L.1991, c.256 (C.40:55D-69.1) is amended to read as follows:
20. If the board of adjustment lacks a quorum because any of its regular or alternate members is prohibited by section 56 of P.L.1975, c.291 (C.40:55D-69) from acting on a matter due to the member's personal or financial interest therein, Class IV members of the planning board shall be called upon to serve, for that matter only, as temporary members of the board of adjustment as set forth below. [The] If a choice has to be made between Class IV members of equal seniority, the chairman of the planning board shall make the choice.
a. In the case of an application for a variance or other relief, other than an application pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), the Class IV members of the planning board shall be called upon to serve in order of seniority of continuous service to the planning board until there are 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 Class IV members of equal seniority, the chairman of the planning board shall make the choice]
b. In the case of an application for a variance pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), the Class IV members of the planning board shall be called upon to serve in order of seniority of continuous service to the planning board until there are seven members to act upon the matter without any personal or financial interest therein, whether direct or indirect; provided, however, that nothing herein shall be construed as requiring the presence of seven members for the board to act.
(cf: P.L.1991, c.256, s.20)
16. Section 63 of P.L.1975, c.291 (C.40:55D-76) is amended to read as follows:
63. a. Sections 59 through 62 of this article (C.40:55D-72 through C.40:55D-75) shall apply to the power of the board of adjustment to:
(1) Direct issuance of a permit pursuant to section 25 of [this act] P.L.1975, c.291 (C.40:55D-34) for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved pursuant to section 23 of [this act] P.L.1975, c.291 (C.40:55D-32); or
(2) Direct issuance of a permit pursuant to section 27 of [this act] P.L.1975, c.291 (C.40:55D-36) for a building or structure not related to a street.
b. The board of adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the planning board, subdivision or site plan approval pursuant to article 6 of [this act] P.L.1975, c.291 (C.40:55D-37 through C.40:55D-58) or conditional use approval pursuant to section 54 of [this act] P.L.1975, c.291 (C.40:55D-67), whenever the proposed development requires approval by the board of adjustment of a variance pursuant to subsection d. of section 57 of [this act] P.L.1975, c.291 (C. 40:55D-70). The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the board of adjustment. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. The number of votes of board members required to grant any such subsequent approval shall be as otherwise provided in this act for the approval in question, and the special vote pursuant to [the aforesaid] subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70) shall not be required.
c. Whenever an application for development requests relief pursuant to subsection b. of this section, the board of adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this act. Failure of the board of adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the board of adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
Whenever review or approval of the application by the county planning board is required by section 5 of P.L.1968, c. 285 (C. 40:27-6.3), in the case of a subdivision, or section 8 of P.L.1968, c. 285 (C. 40:27-6.6), in the case of a site plan, the municipal board of adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the county planning board or approval by the county planning board by its failure to report thereon within the required time.
An application under this section may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act.
(d) The board of adjustment may meet jointly with the governing body, the planning board, or both for the purpose of discussing the board's annual report prepared pursuant to section 16 of P.L.1985, c.516 (C.40:55D-70.1).
(cf: P.L.1984, c.20, s.13)
17. (New section) Any interested party appealing a decision of a municipal agency to the Superior Court or other body having jurisdiction shall, concurrently with filing the complaint or appeal with the clerk of the court or body to whom the appeal is taken, also file a copy of the complaint or appeal with the clerk of the municipality.
18. This act shall take effect on the first day of the third month next following enactment.
STATEMENT
This bill is the result of extensive deliberations by the Municipal Land Use Law (MLUL) Drafting Committee, which was instrumental in preparing the basic draft documents of the 1975 "Municipal Land Use Law" as well as several comprehensive revisions to that law. The MLUL Drafting Committee has monitored the working of the "Municipal Land Use Law," reviewed both reported and unreported court decisions interpreting that law, and invited and reviewed comments of local officials and other concerned citizens on their experiences under the law. The contents of the bill are as follows:
Section 1 and section 5 of the bill would codify the decision of the New Jersey Supreme Court in Township of Stafford v. Stafford Township Zoning Bd. of Adjustment, 154 N.J. 62 (1998) which held that an application for certification of a prior nonconforming use or structure must comply with the notice and hearing requirements of the "Municipal Land Use Law" under N.J.S.A. 40:55D-12.
Section 2 and sections 8 through 12 of the bill would modify the disclosure requirements contained in the law to better reflect the diverse ways that organizations submitting applications for development are organized. The changes to these sections would encompass limited liability entities and non-profit entities. Additionally, the changes contained in these provisions would require disclosure of significant ownership interests by both the applicant and the owner of the property.
Section 3 of the bill would eliminate from the Municipal Land Use Law a provision excepting "executive sessions" of municipal agencies from the definition of regular or special meeting in order to achieve consistency with the intent, purpose and content of the "Open Public Meetings Act," P.L.1975, c.231 (C.10:4-6 et seq.). Amendments to this section also clarify that planning boards and zoning boards of adjustment operate under their own rules and regulations, not those of the municipality.
Section 4 of the bill would require that a copy of any decision on an application for development be filed by the municipal agency in the office of the administrative officer within 10 days of the date of decision. Current law does not specify a time-frame for this filing requirement. The bill would also require the administrative officer to maintain a record of every decision of the municipal agency and index those decisions according to the property's block and lot number.
Section 5 of the bill would clarify that a new notice must be provided for an application seeking the extension of approvals which, taken together, would extend the approval for more than five years from the date of the initial approval.
Section 6 of the bill would authorize planning boards to establish committees comprising less than a quorum of board members to conduct informal working sessions: to review applications for development that do not include a request for a "d" variance; to include board professionals in these working sessions; and to review issues with relating to the application with the applicant. Additionally, this section, together with section 16 of the bill, would allow the full planning board and the zoning board of adjustment to meet jointly with the governing body to discuss the zoning board of adjustment's annual report.
Section 7 of the bill would the bill would clarify that minor subdivision approvals may be extended for an additional 190 days rather than lapse.
Section 13 of the bill would amend the law concerning the resolution of disputes over professional services charges by affording municipal governing body's 60 days to try to resolve the dispute. Current law affords a governing body a "reasonable time" to attempt to remediate disputed charges. This change will establish a clear time table to allow an applicant a time certain to institute an appeal.
Section 14 of the bill would clarify that an amendment to the zoning ordinance resulting from either the adoption of a master plan or from a periodic reexamination report of the master plan using the same procedure as a master plan amendment may be accomplished without the personal notice requirements contained in the MLUL in this section for changes to the classification or boundaries of a zoning district. A reexamination report is not part of a master plan and if the reexamination report is adopted without using the master plan notice procedure, the notice requirements contained in this section must still be satisfied.
Section 15 of the bill would clarify the procedure for allowing Class IV planning board members to serve as temporary members of the board of adjustment in order to achieve a quorum because of the exclusion of certain members from acting on a matter due to a personal or financial interest therein.
Specifically, the bill provides that in the case of an application for a variance or relief, other than a "d" variance, Class IV members would be called upon to serve in order of seniority of continuous service to the planning board as under current law. In the case of a "d" variance, however, Class IV members of the planning board would be called upon to serve in order of seniority of continuous service to the planning board until there are seven members to act upon the matter without any personal or financial interest therein, whether direct or indirect.
This change is necessitated because under current law, the quorum required for a zoning board to hear an application involving a "d" variance is four out of seven members while, at the same time, five members are needed in order to approve a "d" variance. If the minimum number of members is present in order to allow for a quorum, under current law there would not be a sufficient number of votes in order to allow for an affirmative vote on such a variance.
Section 17 of the bill would require any interested party appealing a decision of a municipal agency to the Superior Court or other body having jurisdiction to file a copy of the complaint or appeal with the municipal clerk.
