NJ State Planning 1997 Municipal Land Use Law 1

New Jersey Permanent Statutes

TITLE 40 MUNICIPALITIES AND COUNTIES

40:55D-1. Short title

This act may be cited and referred to as the "Municipal Land Use Law."

L.1975, c. 291, s. 1, eff. Aug. 1, 1976.

40:55D-2. Purpose of the act

Purpose of the act. It is the intent and purpose of this act:

a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;

b. To secure safety from fire, flood, panic and other natural and man-made disasters;

c. To provide adequate light, air and open space;

d. To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole;

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;

f. To encourage the appropriate and efficient expenditure of public funds by the coordination of public development with land use policies;

g. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens;

h. To encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight;

i. To promote a desirable visual environment through creative development techniques and good civic design and arrangement;

j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;

k. To encourage planned unit developments which incorporate the best features of design and relate the type, design and layout of residential, commercial, industrial and recreational development to the particular site;

l. To encourage senior citizen community housing construction;

m. To encourage coordination of the various public and private procedures and activities shaping land development with a view of lessening the cost of such development and to the more efficient use of land;

n. To promote utilization of renewable energy resources; and

o. To promote the maximum practicable recovery and recycling of recyclable materials from municipal solid waste through the use of planning practices designed to incorporate the State Recycling Plan goals and to complement municipal recycling programs.

L. 1975, c. 291, s. 2; amended by L. 1979, c. 216, s. 1; 1980, c. 146, s. 1; 1985, c. 516, s. 1; 1987, c. 102, s. 25.

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40:55D-3. Definitions; shall, may, A to C

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.

"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).

"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 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.

L.1975,c.291,s.3; amended 1979,c.216,s.2; 1984,c.20,s.1; 1991,c.412,s.1.

40:55D-4. Definitions; D to L

3.1. "Days" means calendar days.

"Density" means the permitted number of dwelling units per gross area of land to be developed.

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"Developer" means the legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.

"Development" means the division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure, or of any mining excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to this act.

"Development regulation" means a zoning ordinance, subdivision ordinance, site plan ordinance, official map ordinance or other municipal regulation of the use and development of land, or amendment thereto adopted and filed pursuant to this act.

"Drainage" means the removal of surface water or groundwater from land by drains, grading or other means and includes control of runoff during and after construction or development to minimize erosion and sedimentation, to assure the adequacy of existing and proposed culverts and bridges, to induce water recharge into the ground where practical, to lessen nonpoint pollution, to maintain the integrity of stream channels for their biological functions as well as for drainage, and the means necessary for water supply preservation or prevention or alleviation of flooding.

"Environmental commission" means a municipal advisory body created pursuant to P.L.1968, c.245 (C.40:56A-1 et seq.).

"Erosion" means the detachment and movement of soil or rock fragments by water, wind, ice and gravity.

"Final approval" means the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees.

"Floor area ratio" means the sum of the area of all floors of buildings or structures compared to the total area of the site.

"General development plan" means a comprehensive plan for the development of a planned development, as provided in section 4 of P.L.1987, c.129 (C.40:55D-45.2).

"Governing body" means the chief legislative body of the municipality. In municipalities having a board of public works, "governing body" means such board.

"Historic district" means one or more historic sites and intervening or surrounding property significantly affecting or affected by the quality and character of the historic site or sites.

"Historic site" means any real property, man-made structure, natural object or configuration or any portion or group of the foregoing of historical, archeological, cultural, scenic or architectural significance.

"Interested party" means: (a) in a criminal or quasi-criminal proceeding, any citizen of the State of New Jersey; and (b) in the case of a civil proceeding in any court or in an administrative proceeding before a municipal agency, any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under this act, or whose rights to use, acquire, or enjoy property under this act, or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under this act.

"Land" includes improvements and fixtures on, above or below the surface.

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"Local utility" means any sewerage authority created pursuant to the "sewerage authorities law," P.L.1946, c.138 (C.40:14A-1 et seq.); any utilities authority created pursuant to the "municipal and county utilities authorities law," P.L.1957, c.183 (C.40:14B-1 et seq.); or any utility, authority, commission, special district or other corporate entity not regulated by the Board of Regulatory Commissioners under Title 48 of the Revised Statutes that provides gas, electricity, heat, power, water or sewer service to a municipality or the residents thereof.

"Lot" means a designated parcel, tract or area of land established by a plat or otherwise, as permitted by law and to be used, developed or built upon as a unit.

L.1975,c.291,s.3.1; amended 1981,c.32,s.8; 1984,c.20,s.2; 1985,c.398,s.14; 1985,c.516,s.2; 1987,c.129,s.1; 1991,c.199,s.1; 1991,,c.412,s.2.

40:55D-5. Definitions

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.

"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.

"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.

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"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 contiguous portion of a street or right-of-way.

"Off-tract" means not located on the property which is the subject of a development application nor on a contiguous portion of a street or right-of-way.

"Onsite" means located on the lot in question.

"On-tract" means located on the property which is the subject of a development application or on a contiguous portion of a 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.

L.1975,c.291,s.3.2; amended 1979,c.216,s.3; 1991,c.256,s.1.

40:55D-6. Definitions; P to R

3.3. "Party immediately concerned" means for purposes of notice any applicant for development, the owners of the subject property and all owners of property and government agencies entitled to notice under section 7.1 of P.L.1975, c.291 (C.40:55D-12).

"Performance guarantee" means any security, which may be accepted by a municipality, 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.

"Planned commercial development" means an area of a minimum contiguous or noncontiguous size as specified by ordinance to be developed according to a plan as a single entity containing one or more structures with appurtenant common areas to accommodate commercial or office uses or both and any residential and other uses incidental to the predominant use as may be permitted by ordinance.

"Planned development" means planned unit development, planned unit residential development, residential cluster, planned commercial development or planned industrial development.

"Planned industrial development" means an area of a minimum contiguous or noncontiguous size as specified by ordinance to be developed according to a plan as a single entity containing one or more structures with appurtenant common areas to accommodate industrial uses and any other uses incidental to the predominant use as may be permitted by ordinance.

"Planned unit development" means an area with a specified minimum contiguous or noncontiguous acreage of 10 acres or more to be developed as a single entity according to a plan, containing one or more residential clusters or planned unit residential developments and one or more public, quasi-public, commercial or industrial areas in such ranges of ratios of nonresidential uses to residential uses as shall be specified in the zoning ordinance.

"Planned unit residential development" means an area with a specified minimum contiguous or noncontiguous acreage of five acres or more to be developed as a single entity according to a plan containing one or more residential clusters, which may include appropriate commercial, or public or quasipublic uses all primarily for the benefit of the residential development.

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"Planning board" means the municipal planning board established pursuant to section 14 of P.L.1975, c.291 (C.40:55D-23).

"Plat" means a map or maps of a subdivision or site plan.

"Preliminary approval" means the conferral of certain rights pursuant to sections 34, 36 and 37 of P.L.1975, c.291 (C.40:55D-46; C.40:55D-48; and C.40:55D-49) prior to final approval after specific elements of a development plan have been agreed upon by the planning board and the applicant.

"Preliminary floor plans and elevations" means architectural drawings prepared during early and introductory stages of the design of a project illustrating in a schematic form, its scope, scale and relationship to its site and immediate environs.

"Public areas" means (1) public parks, playgrounds, trails, paths and other recreational areas; (2) other public open spaces; (3) scenic and historic sites; and (4) sites for schools and other public buildings and structures.

"Public development proposal" means a master plan, capital improvement program or other proposal for land development adopted by the appropriate public body, or any amendment thereto.

"Public drainage way" means the land reserved or dedicated for the installation of storm water sewers or drainage ditches, or required along a natural stream or watercourse for preserving the biological as well as drainage function of the channel and providing for the flow of water to safeguard the public against flood damage, sedimentation and erosion and to assure the adequacy of existing and proposed culverts and bridges, to induce water recharge into the ground where practical, and to lessen nonpoint pollution.

"Public open space" means an open space area conveyed or otherwise dedicated to a municipality, municipal agency, board of education, State or county agency, or other public body for recreational or conservational uses.

"Public utility" means any public utility regulated by the Board of Regulatory Commissioners and defined pursuant to R.S.48:2-13.

"Quorum" means the majority of the full authorized membership of a municipal agency.

"Residential cluster" means a contiguous or noncontiguous area to be developed as a single entity according to a plan containing residential housing units which have a common or public open space area as an appurtenance.

"Residential density" means the number of dwelling units per gross acre of residential land area including streets, easements and open space portions of a development.

"Resubdivision" means (1) the further division or relocation of lot lines of any lot or lots within a subdivision previously made and approved or recorded according to law or (2) the alteration of any streets or the establishment of any new streets within any subdivision previously made and approved or recorded according to law, but does not include conveyances so as to combine existing lots by deed or other instrument.

L.1975,c.291,s.3.3; amended 1981,c.32,s.9; 1991,c.256,s.2; 1991,c.412,s.3; 1995,c.364,s.1.

40:55D-7. Definitions; S to Z

"Sedimentation" means the deposition of soil that has been transported from its site of origin by water, ice, wind, gravity or other natural means as a product of erosion.

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"Site plan" means a development plan of one or more lots on which is shown (1) the existing and proposed conditions of the lot, including but not necessarily limited to topography, vegetation, drainage, flood plains, marshes and waterways, (2) the location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress, drainage facilities, utility services, landscaping, structures and signs, lighting, screening devices, and (3) any other information that may be reasonably required in order to make an informed determination pursuant to an ordinance requiring review and approval of site plans by the planning board adopted pursuant to article 6 of this act.

"Standards of performance" means standards (1) adopted by ordinance pursuant to subsection 52d. regulating noise levels, glare, earthborne or sonic vibrations, heat, electronic or atomic radiation, noxious odors, toxic matters, explosive and inflammable matters, smoke and airborne particles, waste discharge, screening of unsightly objects or conditions and such other similar matters as may be reasonably required by the municipality or (2) required by applicable Federal or State laws or municipal ordinances.

"Street" means any street, avenue, boulevard, road, parkway, viaduct, drive or other way (1) which is an existing State, county or municipal roadway, or (2) which is shown upon a plat heretofore approved pursuant to law, or (3) which is approved by official action as provided by this act, or (4) which is shown on a plat duly filed and recorded in the office of the county recording officer prior to the appointment of a planning board and the grant to such board of the power to review plats; and includes the land between the street lines, whether improved or unimproved, and may comprise pavement, shoulders, gutters, curbs, sidewalks, parking areas and other areas within the street lines.

"Structure" means a combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land.

"Subdivision" means the division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development. The following shall not be considered subdivisions within the meaning of this act, if no new streets are created: (1) divisions of land found by the planning board or subdivision committee thereof appointed by the chairman to be for agricultural purposes where all resulting parcels are 5 acres or larger in size, (2) divisions of property by testamentary or intestate provisions, (3) divisions of property upon court order, including but not limited to judgments of foreclosure, (4) consolidation of existing lots by deed or other recorded instrument and (5) the conveyance of one or more adjoining lots, tracts or parcels of land, owned by the same person or persons and all of which are found and certified by the administrative officer to conform to the requirements of the municipal development regulations and are shown and designated as separate lots, tracts or parcels on the tax map or atlas of the municipality. The term "subdivision" shall also include the term "resubdivision."

"Transcript" means a typed or printed verbatim record of the proceedings or reproduction thereof.

"Variance" means permission to depart from the literal requirements of a zoning ordinance pursuant to section 47 and subsection 29.2b., 57c. and 57d. of this act.

"Zoning permit" means a document signed by the administrative officer (1) which is required by ordinance as a condition precedent to the commencement of a use or the erection, construction, reconstruction, alteration, conversion or installation of a structure or building and (2) which acknowledges that such use, structure or building complies with the provisions of the municipal zoning ordinance or variance therefrom duly authorized by a municipal agency pursuant to sections 47 and 57 of this act.

L.1975, c. 291, s. 3.4, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 4.

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40:55D-8. Municipal fees; exemptions

4. a. Every municipal agency shall adopt and may amend reasonable rules and regulations, not inconsistent with this act or with any applicable ordinance, for the administration of its functions, powers and duties, and shall furnish a copy thereof to any person upon request and may charge a reasonable fee for such copy.

Copies of all such rules and regulations and amendments thereto shall be maintained in the office of the administrative officer.

b. Fees to be charged (1) an applicant for review of an application for development by a municipal agency, and (2) an appellant pursuant to section 8 of this act shall be reasonable and shall be established by ordinance.

c. A municipality may by ordinance exempt, according to uniform standards, charitable, philanthropic, fraternal and religious nonprofit organizations holding a tax exempt status under the Federal Internal Revenue Code of 1954 (26 U.S.C. 501(c) or (d)) from the payment of any fee charged under this act.

d. A municipality shall exempt a board of education from the payment of any fee charged under this act.

e. A municipality may by ordinance exempt, according to uniform standards, a disabled person, or a parent or sibling of a disabled person, from the payment of any fee charged under this act in connection with any application for development which promotes accessibility to his own living unit.

For the purposes of this subsection, "disabled person" means a person who has the total and permanent inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, including blindness, and shall include, but not be limited to, any resident of this State who is disabled pursuant to the federal Social Security Act (42 U.S.C.416), or the federal Railroad Retirement Act of 1974 (45 U.S.C.231 et seq.), or is rated as having a 60% disability or higher pursuant to any federal law administered by the United States Veterans' Act. For purposes of this paragraph "blindness" means central visual acuity of 20/200 or less in the better eye with the use of a correcting lens. An eye which is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees shall be considered as having a central visual acuity of 20/200 or less.

L.1975,c.291,s.4; amended 1979, c.216, s.5; 1983, c.322; 1989, c.43, s.1; 1996, c.92, s.2.

40:55D-9. Meetings; municipal agency

a. Meetings; municipal agency. a. Every municipal agency shall by its rules 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 regulations. 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 23, 25, 49, 50, and subsections 8e., 17a., 17b. and 5d. of this act. 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 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.

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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. L. 1975, c. 291, s. 5, eff. Aug. 1, 1976. Amended by L. 1979, c. 216, s. 6; L. 1984, c. 20, s. 3, eff. March 22,

1984; L. 1985, c. 516, s. 3.

40:55D-10. Hearings

a. The municipal agency shall hold a hearing on each application for development, or adoption, revision or amendment of the master plan.

b. The municipal agency shall make the rules governing such hearings. Any maps and documents for which approval is sought at 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 subpenas 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, of decisions by the zoning board of adjustment pursuant to subsection 57d. of this act, up to a maximum amount as specified by the ordinance.

The municipal agency, in furnishing a transcript of the proceedings to an interested party at his expense, shall not charge such interested party more than the maximum permitted in N.J.S. 2A:11-15. Said transcript 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

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(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. An action pursuant to section 5 of the act (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. 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 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.

L.1975, c. 291, s. 6, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 7; L.1984, c. 20, s. 4, eff. March 22, 1984.

40:55D-10.1. Informal review

At the request of the developer, the planning board shall grant an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for development. The amount of any fees for such an informal review shall be a credit toward fees for review of the application for development. The developer shall not be bound by any concept plan for which review is requested, and the planning board shall not be bound by any such review.

L. 1979, c. 216, s. 8. Amended by L. 1985, c. 516, s. 4

40:55D-10.2. Vote by member of municipal agency absent from hearing

A member of a municipal agency who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such board member has available to him the transcript or recording of all of the hearing from which he was absent, and certifies in writing to the board that he has read such transcript or listened to such recording.

L.1979, c. 216, s. 9.

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40:55D-10.3. Completion of application for development; certification; completion after 45 days if no certification; exception; waiver of requirements for submission

An application for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency, when so certified by the municipal agency or its authorized committee or designee. In the event that the agency, committee or designee does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon the expiration of the 45-day period for purposes of commencing the applicable time period, unless: a. the application lacks information indicated on a checklist adopted by ordinance and provided to the applicant; and b. the municipal agency or its authorized committee or designee has notified the applicant, in writing, of the deficiencies in the application within 45 days of submission of the application. The applicant may request that one or more of the submission requirements be waived, in which event the agency or its authorized committee shall grant or deny the request within 45 days. Nothing herein shall be construed as diminishing the applicant's obligation to prove in the application process that he is entitled to approval of the application.

The municipal agency may subsequently require correction of any information found to be in error and submission of additional information not specified in the ordinance or any revisions in the accompanying documents, as are reasonably necessary to make an informed decision as to whether the requirements necessary for approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such additional information or any revisions in the accompanying documents so required by the municipal agency.

L.1984, c. 20, s. 5, eff. March 22, 1984.

40:55D-10.4. Default approval

An applicant shall comply with the provisions of this section whenever the applicant wishes to claim approval of his application for development by reason of the failure of the municipal agency to grant or deny approval within the time period provided in the "Municipal Land Use Law," P.L. 1975, c. 291 (C. 40:55D-1 et seq.) or any supplement thereto.

a. The applicant shall provide notice of the default approval to the municipal agency and to all those entitled to notice by personal service or certified mail of the hearing on the application for development; but for purposes of determining who is entitled to notice, the hearing on the application for development shall be deemed to have required public notice pursuant to subsection a. of section 7.1 of P.L. 1975, c. 291 (C. 40:55D-12).

b. The applicant shall arrange publication of a notice of the default approval in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.

c. The applicant shall file an affidavit of proof of service and publication with the administrative officer, who in the case of a minor subdivision or final approval of a major subdivision, shall be the officer who issues certificates pursuant to section 35, subsection b. of section 38 or subsection c. of section 63 of P.L. 1975, c. 291 (C. 40:55D-47; C. 40:55D-50; C. 40:55D-76), as the case may be.

L. 1985, c. 516, s. 5.

40:55D-11. Contents of notice of hearing on application for development or adoption of master plan

Notices pursuant to section 7.1 and 7.2 of this act shall state the date, time and place of the hearing, the nature of the matters to be considered and, in the case of notices pursuant to subsection 7.1 of this act, an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office, and the location and times at which any maps and documents for which approval is sought are available pursuant to subsection 6b.

L.1975, c. 291, s. 7, eff. Aug. 1, 1976.

NJ State Planning 1997 Municipal Land Use Law 12

40:55D-12. Notices of application, requirements

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. Public notice of a hearing on an application for development shall be given, except for (1) conventional site plan review pursuant to section 34 of P.L.1975, c.291 (C.40:55D-46), (2) minor subdivisions pursuant to section 35 of P.L.1975, c.291 (C.40:55D-47) or (3) final approval pursuant to section 38 of P.L.1975, c.291 (C.40:55D-50); provided that the governing body may by ordinance require public notice for such categories of site plan review as may be specified by ordinance; and provided further that public notice shall 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.

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. 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) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. 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 to the property owner at his address as shown on the said current tax duplicate. 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 or to any public utility, cable television company, or local utility 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.

NJ State Planning 1997 Municipal Land Use Law 13

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 requiring public notice pursuant to subsection a. of this section shall be given, 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 (1) 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 (2) mailing a copy thereof by certified mail to the person whose name appears on the registration form 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.

L.1975,c.291,s.7.1; amended 1979,c.216,s.10; 1985,c.398,s.15; 1991,c.245; 1991,c.412,s.4.

40:55D-12.1. Registration for notice to utility, CATV company

5. a. Every public utility, cable television company and local utility interested in receiving notice pursuant to

subsection h. of section 7.1 of P.L.1975, c.291 (C.40:55D-12) may register with any municipality in which

the public utility, cable television company or local utility has a right-of-way or easement. The registration

shall remain in effect until revoked by the public utility, cable television company, or local utility or by its

successor in interest.

b. The administrative officer of every municipality shall adopt a registration form and shall maintain a

record of all public utilities, cable television companies, and local utilities which have registered with the

municipality pursuant to subsection a. of this section. The registration form shall include the name of the

public utility, cable television company or local utility and the name, address and position of the person to

whom notice shall be forwarded, as required pursuant to subsection h. of section 7.1 of P.L.1975, c.291

(C.40:55D-12). The information contained therein shall be made available to any applicant, as provided in

subsection c. of section 7.1 of P.L.1975, c.291 (C.40:55D-12).

c. Any municipality may impose a registration fee of $10 on any public utility, cable television company or

local utility which registers to receive notice pursuant to subsection a. of this section.

L.1991,c.412,s.5.

40:55D-12.2. Local utility notice of applications

8. Within 30 days after the effective date of this act, the administrative officer of every municipality shall

notify the corporate secretary of every local utility that, in order to receive notice by an applicant pursuant to

subsection h. of section 7.1 of P.L.1975, c.291 (C.40:55D-12), the utility shall register with the municipality

or any other municipality in which the utility has a right-of-way or easement.

L.1991,c.412,s.8.

40:55D-12.3 Application of subsection h.

9. Failure to give notice as required pursuant to P.L.1991, c.245, shall not invalidate any hearing or

proceeding held or to be held, or any preliminary or final approval granted or to be granted, from August 7,

1991 until 75 days following enactment.

NJ State Planning 1997 Municipal Land Use Law 14

L.1991,c.412,s.9.

40:55D-13. Notice concerning master plan

The planning board shall give:

(1) Public notice of a hearing on adoption, revision or amendment of the master plan; such 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 at least 10 days prior to the date of the hearing;

(2) Notice by personal service or certified mail to the clerk of an adjoining municipality of all hearings on

adoption, revision or amendment of a master plan involving property situated within 200 feet of such

adjoining municipality at least 10 days prior to the date of any such hearing;

(3) Notice by personal service or certified mail to the county planning board of (a) all hearings on the

adoption, revision or amendment of the municipal master plan at least 10 days prior to the date of the

hearing; such notice shall include a copy of any such proposed master plan, or any revision or amendment

thereto; and (b) the adoption, revision or amendment of the master plan not more than 30 days after the date

of such adoption, revision or amendment; such notice shall include a copy of the master plan or revision or

amendment thereto.

L.1975, c. 291, s. 7.2, eff. Aug. 1, 1976.

40:55D-14. Effect of mailing notice

Any notice made by certified mail pursuant to sections 7.1 and 7.2 of this act shall be deemed complete upon

mailing.

L.1975, c. 291, s. 7.3, eff. Aug. 1, 1976.

40:55D-15. Notice of hearing on ordinance or capital improvement program; notice of action on

capital improvement or official map

a. Notice by personal service or certified mail shall be made to the clerk of an adjoining municipality of all

hearings on the adoption, revision or amendment of a development regulation involving property situated

within 200 feet of such adjoining municipality at least 10 days prior to the date of any such hearing.

b. Notice by personal service or certified mail shall be made to the county planning board of (1) all hearings

on the adoption, revision or amendment of any development regulation at least 10 days prior to the date of

the hearing, and (2) the adoption, revision or amendment of the municipal capital improvement program or

municipal official map not more than 30 days after the date of such adoption, revision or amendment. Any

notice provided hereunder shall include a copy of the proposed development regulation, the municipal

official map or the municipal capital program, or any proposed revision or amendment thereto, as the case

may be.

Notice of hearings to be held pursuant to this section shall state the date, time and place of the hearing and

the nature of the matters to be considered. Any notice by certified mail pursuant to this section shall be

deemed complete upon mailing.

L.1975, c. 291, s. 7.4, eff. Aug. 1, 1976.

NJ State Planning 1997 Municipal Land Use Law 15

40:55D-16. Filing of ordinances

Filing of ordinances. Development regulations, except for the official map, shall not take effect until a copy

thereof shall be filed with the county planning board. A zoning ordinance or amendment or revision thereto

which in whole or in part is inconsistent with or not designed to effectuate the land use plan element of the

master plan shall not take effect until a copy of the resolution required by subsection a. of section 49 of P.L.

1975, c. 291 (C. 40:55D-62) shall be filed with the county planning board. The secretary of the county

planning board shall within 10 days of the date of receipt of a written request for copies of any development

regulation make such available to the party so requesting with said secretary's certification that said copies

are true copies and that all filed amendments and resolutions are included. A reasonable charge may be

made by the county planning board for said copies.

The official map of the municipality shall not take effect until filed with the county recording officer.

Copies of all development regulations and any revisions or amendments thereto shall be filed and

maintained in the office of the municipal clerk.

L. 1975, c. 291, s. 7.5, eff. Aug. 1, 1976. Amended by L. 1985, c. 516, s. 6.

40:55D-17. Appeal to the governing body; time; notice; modification; stay of proceedings

8. Appeal to the governing body; time; notice; modification; stay of proceedings. a. Any interested party

may appeal to the governing body any final decision of a board of adjustment approving an application for

development pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), if so permitted by

ordinance. Such appeal shall be made within 10 days of the date of publication of such final decision

pursuant to subsection i. of section 6 of P.L.1975, c.291 (C.40:55D-10). In the case of any board established

pursuant to article 10 of P.L.1975, c.291, the governing body of the municipality in which the land is

situated shall be the "governing body" for purposes of this section. The appeal to the governing body shall

be made by serving the municipal clerk in person or by certified mail with a notice of appeal, specifying the

grounds thereof and the name and address of the appellant and name and address of his attorney, if

represented. Such appeal shall be decided by the governing body only upon the record established before the

board of adjustment.

b. Notice of the meeting to review the record below shall be given by the governing body by personal

service or certified mail to the appellant, to those entitled to notice of a decision pursuant to subsection h. of

section 6 of P.L.1975, c.291 (C.40:55D-10) and to the board from which the appeal is taken, at least 10 days

prior to the date of the meeting. The parties may submit oral and written argument on the record at such

meeting, and the governing body shall provide for verbatim recording and transcripts of such meeting

pursuant to subsection f. of section 6 of P.L.1975, c.291 (C.40:55D-10).

c. The appellant shall, (1) within five days of service of the notice of the appeal pursuant to subsection a.

hereof, arrange for a transcript pursuant to subsection f. of section 6 of P.L.1975, c.291 (C.40:55D-10) for

use by the governing body and pay a deposit of $50.00 or the estimated cost of such transcript, whichever is

less, or (2) within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to the

municipal clerk; otherwise, the appeal may be dismissed for failure to prosecute.

The governing body shall conclude a review of the record below not later than 95 days from the date of

publication of notice of the decision below pursuant to subsection i. of section 6 of P.L.1975, c.291

(C.40:55D-10), unless the applicant consents in writing to an extension of such period. Failure of the

governing body to hold a hearing and conclude a review of the record below and to render a decision within

such specified period shall constitute a decision affirming the action of the board.

d. The governing body may reverse, remand, or affirm with or without the imposition of conditions the final

decision of the board of adjustment approving a variance pursuant to subsection d. of section 57 of P.L.1975,

c.291 (C.40:55D-70). The review shall be made on the record made before the board of adjustment.

NJ State Planning 1997 Municipal Land Use Law 16

e. The affirmative vote of a majority of the full authorized membership of the governing body shall be

necessary to reverse or remand to the board of adjustment or to impose conditions on or alter conditions to

any final action of the board of adjustment. Otherwise the final action of the board of adjustment shall be

deemed to be affirmed; a tie vote of the governing body shall constitute affirmance of the decision of the

board of adjustment.

f. An appeal to the governing body shall stay all proceedings in furtherance of the action in respect to which

the decision appealed from was made, unless the board from whose action the appeal is taken certifies to the

governing body, after the notice of appeal shall have been filed with such board, that by reason of facts

stated in the certificate, a stay would, in its opinion, cause imminent peril to life or property. In such case,

proceedings shall not be stayed other than by an order of the Superior Court on application upon notice to

the board from whom the appeal is taken and on good cause shown.

g. The governing body shall mail a copy of the decision to the appellant or, if represented, then to his

attorney, without separate charge, and for a reasonable charge to any interested party who has requested it,

not later than 10 days after the date of the decision. 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 herein shall be construed as preventing the

applicant from arranging such publication if he so desires. The governing body may make a reasonable

charge for its publication. The period of time in which an appeal to a court of competent jurisdiction may be

made shall run from the first publication, whether arranged by the municipality or the applicant.

h. Nothing in this act shall be construed to restrict the right of any party to obtain a review by any court of

competent jurisdiction, according to law.

L.1975,c.291,s.8; amended 1979,c.216,s.11; 1984,c.20,s.6; 1991,c.256,s.3.

40:55D-18. Enforcement

The governing body of a municipality shall enforce this act and any ordinance or regulation made and

adopted hereunder. To that end, the governing body may require the issuance of specified permits,

certificates or authorizations as a condition precedent to (1) the erection, construction, alteration, repair,

remodeling, conversion, removal or destruction of any building or structure, (2) the use or occupancy of any

building, structure or land, and (3) the subdivision or resubdivision of any land; and shall establish an

administrative officer and offices for the purpose of issuing such permits, certificates or authorizations; and

may condition the issuance of such permits, certificates and authorizations upon the submission of such data,

materials, plans, plats and information as is authorized hereunder and upon the express approval of the

appropriate State, county or municipal agencies; and may establish reasonable fees to cover administrative

costs for the issuance of such permits, certificates and authorizations. In case any building or structure is

erected, constructed, altered, repaired, converted, or maintained, or any building, structure or land is used in

violation of this act or of any ordinance or other regulation made under authority conferred hereby, the

proper local authorities of the municipality or an interested party, in addition to other remedies, may institute

any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction,

alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the

occupancy of said building, structure or land, or to prevent any illegal act, conduct, business or use in or

about such premises.

L.1975, c. 291, s. 9, eff. Aug. 1, 1976.

NJ State Planning 1997 Municipal Land Use Law 17

40:55D-19. Appeal or petition in certain cases to the Board of Public Utility Commissioners

If a public utility, as defined in R.S. 48:2-13, is aggrieved by the action of a municipal agency through said

agency's exercise of its powers under this act, with respect to any action in which the public utility has an

interest, an appeal to the Board of Public Utility Commissioners of the State of New Jersey may be taken

within 35 days after such action without appeal to the municipal governing body pursuant to section 8 of this

act unless such public utility so chooses. In such case appeal to the Public Utility Commissioners may be

taken within 35 days after action by the governing body. A hearing on the appeal of a public utility to the

Public Utility Commissioners shall be had on notice to the agency from which the appeal is taken and to all

parties primarily concerned, all of whom shall be afforded an opportunity to be heard. If, after such hearing,

the Board of Public Utility Commissioners shall find that the present or proposed use by the public utility of

the land described in the petition is necessary for the service, convenience or welfare of the public, the

public utility may proceed in accordance with such decision of the Board of Public Utility Commissioners,

any ordinance or regulation made under the authority of this act notwithstanding.

This act or any ordinance or regulation made under authority thereof, shall not apply to a development

proposed by a public utility for installation in more than one municipality for the furnishing of service, if

upon a petition of the public utility, the Board of Public Utility Commissioners shall after hearing, of which

any municipalities affected shall have notice, decide the proposed installation of the development in question

is reasonably necessary for the service, convenience or welfare of the public.

Nothing in this act shall be construed to restrict the right of any interested party to obtain a review of the

action of the municipal agency or of the Board of Public Utility Commissioners by any court of competent

jurisdiction according to law.

L.1975, c. 291, s. 10, eff. Aug. 1, 1976.

40:55D-20. Exclusive authority of planning board and board of adjustment

Any power expressly authorized by this act to be exercised by (1) planning board or (2) board of adjustment

shall not be exercised by any other body, except as otherwise provided in this act.

L.1975, c. 291, s. 11, eff. Aug. 1, 1976.

40:55D-21. Tolling of running of period of approval

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 and welfare or by a directive or order issued

by any State agency, political subdivision or court of competent jurisdiction 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 act or under any act repealed by this act, as the case may be,

shall be suspended for the period of time said legal action is pending or such directive or order is in effect.

L.1975, c. 291, s. 12, eff. Aug. 1, 1976.

40:55D-22. Conditional approvals

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 other party to protect the public health and welfare or by 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 act and

municipal development regulations, and, if such application for development complies with municipal

development regulations, the municipal agency shall approve such application conditioned on removal of

such legal barrier to development.

NJ State Planning 1997 Municipal Land Use Law 18

b. In the event that development proposed by an application for development requires an approval by a

governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances,

condition its approval upon the subsequent approval of such governmental agency; provided that the

municipality shall make a decision on any application for development within the time period provided in

this act or within an extension of such period as has been agreed to by the applicant unless the municipal

agency is prevented or relieved from so acting by the operation of law.

L.1975, c. 291, s. 13, eff. Aug. 1, 1976.

40:55D-23. Planning board membership

14. Planning board membership.

a. The governing body may, by ordinance, create a planning board of seven or nine members. The

membership shall consist of, for convenience in designating the manner of appointment, the four following

classes:

Class I--the mayor or the mayor's designee in the absence of the mayor or, in the case of the councilmanager

form of government pursuant to the Optional Municipal Charter Law, P.L.1950, c.210 (C.40:69A-1

et seq.) or "the municipal manager form of government law" (R.S.40:79-1 et seq.), the manager, if so

provided by the aforesaid ordinance.

Class II--one of the officials of the municipality other than a member of the governing body, to be appointed

by the mayor; provided that if there be an environmental commission, the member of the environmental

commission who is also a member of the planning board as required by section 1 of P.L.1968, c.245

(C.40:56A-1), shall be deemed to be the Class II planning board member for purposes of this act in the event

that there be among the Class IV or alternate members of the planning board both a member of the zoning

board of adjustment and a member of the board of education.

Class III--a member of the governing body to be appointed by it.

Class IV--other citizens of the municipality, to be appointed by the mayor or, in the case of the councilmanager

form of government pursuant to the Optional Municipal Charter Law, P.L.1950, c.210 (C.40:69A-1

et seq.) or "the municipal manager form of government law" (R.S.40:79-1 et seq.), by the council, if so

provided by the aforesaid ordinance.

The members of Class IV shall hold no other municipal office, position or employment, except that in the

case of nine-member boards, one such member may be a member of the zoning board of adjustment or

historic preservation commission. No member of the board of education may be a Class IV member of the

planning board, except that in the case of a nine-member board, one Class IV member may be a member of

the board of education. If there be a municipal environmental commission, the member of the environmental

commission who is also a member of the planning board, as required by section 1 of P.L.1968, c.245

(C.40:56A-1), shall be a Class IV planning board member, unless there be among the Class IV or alternate

members of the planning board both a member of the zoning board of adjustment or historic preservation

commission and a member of the board of education, in which case the member common to the planning

board and municipal environmental commission shall be deemed a Class II member of the planning board.

For the purpose of this section, membership on a municipal board or commission whose function is advisory

in nature, and the establishment of which is discretionary and not required by statute, shall not be considered

the holding of municipal office.

NJ State Planning 1997 Municipal Land Use Law 19

b. The term of the member composing Class I shall correspond to the mayor's or manager's official tenure,

or, if the member is the mayor's designee in the absence of the mayor, the designee shall serve at the

pleasure of the mayor during the mayor's official tenure. The terms of the members composing Class II and

Class III shall be for one year or terminate at the completion of their respective terms of office, whichever

occurs first, except for a Class II member who is also a member of the environmental commission. The term

of a Class II or Class IV member who is also a member of the environmental commission shall be for three

years or terminate at the completion of his term of office as a member of the environmental commission,

whichever occurs first. The term of a Class IV member who is also a member of the board of adjustment or

board of education shall terminate whenever he is no longer a member of such other body or at the

completion of his Class IV term, whichever occurs first. The terms of all Class IV members first appointed

under this act shall be so determined that to the greatest practicable extent the expiration of such terms shall

be distributed evenly over the first four years after their appointments; provided that the initial Class IV term

of no member shall exceed four years. Thereafter, the Class IV term of each such member shall be four

years. If a vacancy in any class shall occur otherwise than by expiration of the planning board term, it shall

be filled by appointment, as above provided, for the unexpired term. No member of the planning board shall

be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial

interest. Any member other than a Class I member, after a public hearing if he requests one, may be

removed by the governing body for cause.

c. In any municipality in which the term of the municipal governing body commences on January 1, the

governing body may, by ordinance, provide that the term of appointment of any class of member of the

planning board appointed pursuant to this section shall commence on January 1. In any municipality in

which the term of the municipal governing body commences on July 1, the governing body may, by

ordinance, provide that the term of appointment of any class of member appointed pursuant to this section

commence on July 1.

L.1975,c.291,s.14; amended 1978,c.37,s.1; 1979,c.216,s.12; 1985,c.516,s.7; 1990,c.130; 1991,c.256,s.4;

1994,c.158.

40:55D-23.1. Alternate members

The governing body may, by ordinance, provide for the appointment to the planning board of not more than

two alternate members. Alternate members shall be appointed by the appointing authority for Class IV

members, and shall meet the qualifications of Class IV members of nine-member planning boards. Alternate

members shall be designated at the time of appointment by the mayor as "Alternate No. 1" and "Alternate

No. 2." The terms of the alternate members shall be for 2 years, except that the terms of the alternate

members shall be such that the term of not more than one alternate member shall expire in any 1 year;

provided, however, that in no instance shall the terms of the alternate members first appointed exceed 2

years. A vacancy occurring otherwise than by expiration of term shall be filled by the appointing authority

for the unexpired term only.

No alternate member shall be permitted to act on any matter in which he has either directly or indirectly any

personal or financial interest. An alternate member may, after public hearing if he requests one, be removed

by the governing body for cause.

Alternate members may participate in discussions of the proceedings but may not vote except in the absence

or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular

member may vote instead of an alternate member. In the event that a choice must be made as to which

alternate member is to vote, Alternate No. 1 shall vote.

L.1979, c. 216, s. 13.

NJ State Planning 1997 Municipal Land Use Law 20

40:55D-23.2. Members of board of adjustment may serve as temporary members of planning board

5. If the planning board lacks a quorum because any of its regular or alternate members is prohibited by

subsection b. of section 14 of P.L.1975, c.291 (C.40:55D-23) or section 13 of P.L.1979, c.216 (C.40:55D-

23.1) from acting on a matter due to the member's personal or financial interests therein, regular members of

the board of adjustment shall be called upon to serve, for that matter only, as temporary members of the

planning board in order of seniority of continuous service to the board of adjustment until there 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 regular members

of equal seniority, the chairman of the board of adjustment shall make the choice.

L.1991,c.256,s.5.

40:55D-24. Organization of planning board

The planning board shall elect a chairman and vice chairman from the members of Class IV, select a

secretary who may or may not be a member of the planning board or a municipal employee, and create and

fill such other offices as established by ordinance. It may employ, or contract for, and fix the compensation

of legal counsel, other than the municipal attorney, and experts, and other staff and services as it may deem

necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its

use.

L.1975, c. 291, s. 15, eff. Aug. 1, 1976.

40:55D-25. Powers of planning board

16. a. The planning board shall follow the provisions of this act 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.

c. (1) In a municipality having a population of 10,000 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).

NJ State Planning 1997 Municipal Land Use Law 21

(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.

L.1975,c.291,s.16; amended 1985, c.516, s.8; 1991, c.199, s.2; 1994, c.186; 1996, c.113, s.8.

40:55D-26. Referral powers

Referral powers. a. Prior to the adoption of a development regulation, revision, or amendment thereto, the

planning board shall make and transmit to the governing body, within 35 days after referral, a report

including identification of any provisions in the proposed development regulation, revision or amendment

which are inconsistent with the master plan and recommendations concerning these inconsistencies and any

other matters as the board deems appropriate. The governing body, when considering the adoption of a

development regulation, revision or amendment thereto, shall review the report of the planning board and

may disapprove or change any recommendation by a vote of a majority of its full authorized membership

and shall record in its minutes the reasons for not following such recommendation. Failure of the planning

board to transmit its report within the 35-day period provided herein shall relieve the governing body from

the requirements of this subsection in regard to the proposed development regulation, revision or amendment

thereto referred to the planning board. Nothing in this section shall be construed as diminishing the

application of the provisions of section 23 of P.L. 1975, c. 291 (C. 40:55D-32) to any official map or an

amendment or revision thereto or of subsection a. of section 49 of P.L. 1975, c. 291 (C. 40:55D-62) to any

zoning ordinance or any amendment or revision thereto.

b. The governing body may by ordinance provide for the reference of any matter or class of matters to the

planning board before final action thereon by a municipal body or municipal officer having final authority

thereon, except of any matter under the jurisdiction of the board of adjustment. Whenever the planning

board shall have made a recommendation regarding a matter authorized by this act to another municipal

body, such recommendation may be rejected only by a majority of the full authorized membership of such

other body.

L. 1975, c. 291, s. 17, eff. Aug. 1, 1976. Amended by L. 1984, c. 20, s. 7, eff. March 22, 1984; L. 1985, c.

516, s. 10.

40:55D-27. Citizens advisory committee; environmental commission

a. After the appointment of a planning board, the mayor may appoint one or more persons as a citizens'

advisory committee to assist or collaborate with the planning board in its duties, but such person or persons

shall have no power to vote or take other action required of the board. Such person or persons shall serve at

the pleasure of the mayor.

NJ State Planning 1997 Municipal Land Use Law 22

b. Whenever the environmental commission has prepared and submitted to the planning board and the board

of adjustment an index of the natural resources of the municipality, the planning board or the board of

adjustment shall make available to the environmental commission an informational copy of every

application for development submitted to either board. Failure of the planning board or board of adjustment

to make such informational copy available to the environmental commission shall not invalidate any hearing

or proceeding.

L.1975, c. 291, s. 18, eff. Aug. 1, 1976. Amended by L.1977, c. 49, s. 1, eff. March 29, 1977.

40:55D-28. Preparation; contents; modification

19. Preparation; contents; modification.

a. The planning board may prepare and, after public hearing, adopt or amend a master plan or component

parts thereof, to guide the use of lands within the municipality in a manner which protects public health and

safety and promotes the general welfare.

b. The master plan shall generally comprise a report or statement and land use and development proposals,

with maps, diagrams and text, presenting, at least the following elements (1) and (2) and, where appropriate,

the following elements (3) through (12):

(1) A statement of objectives, principles, assumptions, policies and standards upon which the constituent

proposals for the physical, economic and social development of the municipality are based;

(2) A land use plan element (a) taking into account and stating its relationship to the statement provided for

in paragraph (1) hereof, and other master plan elements provided for in paragraphs (3) through (12) hereof

and natural conditions, including, but not necessarily limited to, topography, soil conditions, water supply,

drainage, flood plain areas, marshes, and woodlands; (b) showing the existing and proposed location, extent

and intensity of development of land to be used in the future for varying types of residential, commercial,

industrial, agricultural, recreational, educational and other public and private purposes or combination of

purposes; and stating the relationship thereof to the existing and any proposed zone plan and zoning

ordinance; and (c) showing the existing and proposed location of any airports and the boundaries of any

airport safety zones delineated pursuant to the "Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-

80 et seq.); and (d) including a statement of the standards of population density and development intensity

recommended for the municipality;

(3) A housing plan element pursuant to section 10 of P.L.1985, c.222 (C.52:27D-310), including, but not

limited to, residential standards and proposals for the construction and improvement of housing;

(4) A circulation plan element showing the location and types of facilities for all modes of transportation

required for the efficient movement of people and goods into, about, and through the municipality, taking

into account the functional highway classification system of the Federal Highway Administration and the

types, locations, conditions and availability of existing and proposed transportation facilities, including air,

water, road and rail;

(5) A utility service plan element analyzing the need for and showing the future general location of water

supply and distribution facilities, drainage and flood control facilities, sewerage and waste treatment, solid

waste disposal and provision for other related utilities, and including any storm water management plan

required pursuant to the provisions of P.L.1981, c.32 (C.40:55D-93 et seq.);

(6) A community facilities plan element showing the existing and proposed location and type of educational

or cultural facilities, historic sites, libraries, hospitals, firehouses, police stations and other related facilities,

including their relation to the surrounding areas;

(7) A recreation plan element showing a comprehensive system of areas and public sites for recreation;

NJ State Planning 1997 Municipal Land Use Law 23

(8) A conservation plan element providing for the preservation, conservation, and utilization of natural

resources, including, to the extent appropriate, energy, open space, water supply, forests, soil, marshes,

wetlands, harbors, rivers and other waters, fisheries, endangered or threatened species wildlife and other

resources, and which systemically analyzes the impact of each other component and element of the master

plan on the present and future preservation, conservation and utilization of those resources;

(9) An economic plan element considering all aspects of economic development and sustained economic

vitality, including (a) a comparison of the types of employment expected to be provided by the economic

development to be promoted with the characteristics of the labor pool resident in the municipality and

nearby areas and (b) an analysis of the stability and diversity of the economic development to be promoted;

(10) A historic preservation plan element: (a) indicating the location and significance of historic sites and

historic districts; (b) identifying the standards used to assess worthiness for historic site or district

identification; and (c) analyzing the impact of each component and element of the master plan on the

preservation of historic sites and districts;

(11) Appendices or separate reports containing the technical foundation for the master plan and its

constituent elements; and

(12) A recycling plan element which incorporates the State Recycling Plan goals, including provisions for

the collection, disposition and recycling of recyclable materials designated in the municipal recycling

ordinance, and for the collection, disposition and recycling of recyclable materials within any development

proposal for the construction of 50 or more units of single-family residential housing or 25 or more units of

multi-family residential housing and any commercial or industrial development proposal for the utilization

of 1,000 square feet or more of land.

c. The master plan and its plan elements may be divided into subplans and subplan elements projected

according to periods of time or staging sequences.

d. The master plan shall include a specific policy statement indicating the relationship of the proposed

development of the municipality, as developed in the master plan to (1) the master plans of contiguous

municipalities, (2) the master plan of the county in which the municipality is located, (3) the State

Development and Redevelopment Plan adopted pursuant to the "State Planning Act," sections 1 through 12

of P.L.1985, c.398 (C.52:18A-196 et seq.) and (4) the district solid waste management plan required

pursuant to the provisions of the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.) of the

county in which the municipality is located.

L.1975,c.291,s.19; amended 1980,c.146,s.2; 1983,c.260,s.10; 1985,c.222,s.29; 1985,c.398,s.16;

1985,c.516,s.11; 1987,c.102,s.26; 1991,c.199,s.3; 1991,c.445,s.7.

40:55D-29. Preparation of capital improvement program

a. The governing body may authorize the planning board from time to time to prepare a program of

municipal capital improvement projects projected over a term of at least 6 years, and amendments thereto.

Such program may encompass major projects being currently undertaken or future projects to be undertaken,

with Federal, State, county and other public funds or under Federal, State or county supervision. The first

year of such program shall, upon adoption by the governing body, constitute the capital budget of the

municipality as required by N.J.S. 40A:4-43 et seq. The program shall classify projects in regard to the

urgency and need for realization, and shall recommend a time sequence for their implementation. The

program may also contain the estimated cost of each project and indicate probable operating and

maintenance costs and probable revenues, if any, as well as existing sources of funds or the need for

additional sources of funds for the implementation and operation of each project. The program shall, as far

as possible, be based on existing information in the possession of the departments and agencies of the

municipality and shall take into account public facility needs indicated by the prospective development

shown in the master plan of the municipality or as permitted by other municipal land use controls.

NJ State Planning 1997 Municipal Land Use Law 24

In preparing the program, the planning board shall confer, in a manner deemed appropriate by the board,

with the mayor, the chief fiscal officer, other municipal officials and agencies, and the school board or

boards.

Any such program shall include an estimate of the displacement of persons and establishments caused by

each recommended project.

b. In addition to any of the requirements in subsection a. of this section, whenever the planning board is

authorized and directed to prepare a capital improvements program, every municipal department, authority

or agency shall, upon request of the planning board, transmit to said board a statement of all capital projects

proposed to be undertaken by such municipal department, authority or agency, during the term of the

program, for study, advice and recommendation by the planning board.

L.1975, c. 291, s. 20, eff. Aug. 1, 1976.

40:55D-30. Adoption of capital improvement program

Whenever the planning board has prepared a capital improvement program pursuant to section 20 of this act,

it shall recommend such program to the governing body which may adopt such program with any

modification approved by affirmative vote of a majority of the full authorized membership of the governing

body and with the reasons for said modification recorded in the minutes.

L.1975, c. 291, s. 21, eff. Aug. 1, 1976.

40:55D-31. Review of capital projects

Whenever the planning board shall have adopted any portion of the master plan, the governing body or other

public agency having jurisdiction over the subject matter, before taking action necessitating the expenditure

of any public funds, incidental to the location, character or extent of such project, shall refer the action

involving such specific project to the planning board for review and recommendation in conjunction with

such master plan and shall not act thereon, without such recommendation or until 45 days have elapsed after

such reference without receiving such recommendation. This requirement shall apply to action by a housing,

parking, highway, special district, or other authority, redevelopment agency, school board or other similar

public agency, State, county or municipal.

L.1975, c. 291, s. 22, eff. Aug. 1, 1976.

40:55D-32. Establish an official map

The governing body may by ordinance adopt or amend an official map of the municipality, which shall

reflect the appropriate provisions of any municipal master plan; provided that the governing body may adopt

an official map or an amendment or revision thereto which, in whole or in part, is inconsistent with the

appropriate designations in the subplan elements of the master plan, but only by the affirmative vote of a

majority of its full authorized membership with the reasons for so acting recorded in the minutes when

adopting the official map. Prior to the hearing on the adoption of any official map or any amendment

thereto, the governing body shall refer the proposed official map or amendment to the planning board

pursuant to subsection 17a. of this act.

The official map shall be deemed conclusive with respect to the location and width of streets and public

drainage ways and the location and extent of flood control basins and public areas, whether or not such

streets, ways, basins or areas are improved or unimproved or are in actual physical existence. Upon

receiving an application for development, the municipality may reserve for future public use, the aforesaid

streets, ways, basins, and areas in the manner provided in section 32.

L.1975, c. 291, s. 23, eff. Aug. 1, 1976.

NJ State Planning 1997 Municipal Land Use Law 25

40:55D-33. Change or addition to map

The approval by the municipality by ordinance under the provisions of any law other than as contained in

this article of the layout, widening, changing the course of or closing of any street, or the widening or

changing the course of any public drainage way or changing the boundaries of a flood control basin or

public area, shall be subject to relevant provisions of this act.

L.1975, c. 291, s. 24, eff. Aug. 1, 1976.

40:55D-34. Issuance of permits for buildings or structures

25. Issuance of permits for buildings or structures. For purpose of preserving the integrity of the official map

of a municipality no permit shall be issued for any building or structure in the bed of any street or public

drainage way, flood control basin or public area reserved pursuant to section 23 of P.L.1975, c.291

(C.40:55D-32) as shown on the official map, or shown on a plat filed pursuant to this act before adoption of

the official map, except as herein provided. Whenever one or more parcels of land, upon which is located the

bed of such a mapped street or public drainage way, flood control basin or public area reserved pursuant to

section 23 of P.L.1975, c.291 (C.40:55D-32), cannot yield a reasonable return to the owner unless a building

permit is granted, the board of adjustment, in any municipality which has established such a board, may, in a

specific case, by an affirmative vote of a majority of the full authorized membership of the board, direct the

issuance of a permit for a building or structure in the bed of such mapped street or public drainage way or

flood control basin or public area reserved pursuant to section 23 of P.L.1975, c.291 (C.40:55D-32), which

will as little as practicable increase the cost of opening such street, or tend to cause a minimum change of the

official map and the board shall impose reasonable requirements as a condition of granting the permit so as

to promote the health, morals, safety and general welfare of the public. Sections 59 through 62 of P.L.1975,

c.291 (C.40:55D-72 through C.40:55D-75) shall apply to applications or appeals pursuant to this section. In

any municipality in which there is no board of adjustment, the planning board shall have the same powers

and be subject to the same restrictions as provided in this section.

The board of adjustment shall not exercise the power otherwise granted by this section if the proposed

development requires approval by the planning board of a subdivision, site plan or conditional use in

conjunction with which the planning board has power to direct the issuance of a permit pursuant to

subsection b. of section 47 of P.L.1975, c.291 (C.40:55D-60).

L.1975,c.291,s.25; amended 1991,c.256,s.6.

40:55D-35. Building lot to abut street

Building lot to abut street. No permit for the erection of any building or structure shall be issued unless the

lot abuts a street giving access to such proposed building or structure. Such street shall have been duly

placed on the official map or shall be (1) an existing State, county or municipal street or highway, or (2) a

street shown upon a plan approved by the planning board, or (3) a street on a plat duly filed in the office of

the county recording officer prior to the passage of an ordinance under this act or any prior law which

required prior approval of plats by the governing body or other authorized body. Before any such permit

shall be issued, (1) such street shall have been certified to be suitably improved to the satisfaction of the

governing body, or such suitable improvement shall have been assured by means of a performance

guarantee, in accordance with standards and specifications for road improvements approved by the

governing body, as adequate in respect to the public health, safety and general welfare of the special

circumstance of the particular street and, (2) it shall have been established that the proposed access conforms

with the standards of the State highway access management code adopted by the Commissioner of

Transportation under section 3 of the "State Highway Access Management Act," P.L 1989, c. 32 (C. 27:7-

91), in the case of a State highway, with the standards of any access management code adopted by the

county under R.S. 27:16-1 in the case of a county road or highway, and with the standards of any municipal

access management code adopted under R.S. 40:67-1 in the case of a municipal street or highway.

NJ State Planning 1997 Municipal Land Use Law 26

L. 1975, c. 291, s. 26; amended L. 1989, c. 32, s. 23.

40:55D-36. Appeals

27. Appeals. Where the enforcement of section 26 of P.L.1975, c.291 (C.40:55D-35) would entail practical

difficulty or unnecessary hardship, or where the circumstances of the case do not require the building or

structure to be related to a street, the board of adjustment may upon application or appeal, vary the

application of section 26 of P.L.1975, c.291 (C.40:55D-35) and direct the issuance of a permit subject to

conditions that will provide adequate access for firefighting equipment, ambulances and other emergency

vehicles necessary for the protection of health and safety and that will protect any future street layout shown

on the official map or on a general circulation plan element of the municipal master plan pursuant to

paragraph (4) of subsection b. of section 19 of P.L.1975, c.291 (C.40:55D-28).

Sections 59 through 62 of P.L.1975, c.291 (C.40:55D-72 through C.40:55D-75) shall apply to applications

or appeals pursuant to this section. In any municipality in which there is no board of adjustment, the

planning board shall have the same powers and be subject to the same restrictions as provided in this section.

The board of adjustment shall not exercise the power otherwise granted by this section if the proposed

development requires approval by the planning board of a subdivision, site plan or conditional use in

conjunction with which the planning board has power to direct the issuance of a permit pursuant to

subsection c. of section 47 of P.L.1975, c.291 (C.40:55D-60).

L.1975,c.291,s.27; amended 1991,c.256,s.7.

40:55D-37. Grant of power; referral of proposed ordinance; county planning board approval

a. The governing body may by ordinance require approval of subdivision plats by resolution of the planning

board as a condition for the filing of such plats with the county recording officer and approval of site plans

by resolution of the planning board as a condition for the issuance of a permit for any development, except

that subdivision or individual lot applications for detached one or two dwelling-unit buildings shall be

exempt from such site plan review and approval; provided that the resolution of the board of adjustment

shall substitute for that of the planning board whenever the board of adjustment has jurisdiction over a

subdivision or site plan pursuant to subsection 63b. of this act.

b. Prior to the hearing on adoption of an ordinance providing for planning board approval of either

subdivisions or site plans or both or any amendment thereto, the governing body shall refer any such

proposed ordinance or amendment thereto to the planning board pursuant to subsection 17a. of this act.

c. Each application for subdivision approval, where required pursuant to section 5 of P.L.1968, c. 285 (C.

40:27-6.3), and each application for site plan approval, where required pursuant to section 8 of P.L.1968, c.

285 (C. 40:27-6.6) shall be submitted by the applicant to the county planning board for review or approval,

as required by the aforesaid sections, and 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.

L.1975, c. 291, s. 28, eff. Aug. 1, 1976.

40:55D-38. Contents ordinance

29. Contents of ordinance. An ordinance requiring approval by the planning board of either subdivisions or

site plans, or both, shall include the following:

a. Provisions, not inconsistent with other provisions of this act, for submission and processing of

applications for development, including standards for preliminary and final approval and provisions for

processing of final approval by stages or sections of development;

b. Provisions ensuring:

NJ State Planning 1997 Municipal Land Use Law 27

(1) Consistency of the layout or arrangement of the subdivision or land development with the requirements

of the zoning ordinance;

(2) Streets in the subdivision or land development of sufficient width and suitable grade and suitably located

to accommodate prospective traffic and to provide access for firefighting and emergency equipment to

buildings and coordinated so as to compose a convenient system consistent with the official map, if any, and

the circulation element of the master plan, if any, and so oriented as to permit, consistent with the reasonable

utilization of land, the buildings constructed thereon to maximize solar gain; provided that no street of a

width greater than 50 feet within the right-of-way lines shall be required unless said street constitutes an

extension of an existing street of the greater width, or already has been shown on the master plan at the

greater width, or already has been shown in greater width on the official map;

(3) Adequate water supply, drainage, shade trees, sewerage facilities and other utilities necessary for

essential services to residents and occupants;

(4) Suitable size, shape and location for any area reserved for public use pursuant to section 32 of this act;

(5) Reservation pursuant to section 31 of this act of any open space to be set aside for use and benefit of the

residents of planned development, resulting from the application of standards of density or intensity of land

use, contained in the zoning ordinance, pursuant to subsection c. of section 52 of this act;

(6) Regulation of land designated as subject to flooding, pursuant to subsection e. of section 52 of this act, to

avoid danger to life or property;

(7) Protection and conservation of soil from erosion by wind or water or from excavation or grading;

(8) Conformity with standards promulgated by the Commissioner of Transportation, pursuant to the "Air

Safety and Hazardous Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.), for any airport hazard areas

delineated under that act;

(9) Conformity with a municipal recycling ordinance required pursuant to section 6 of P.L.1987, c.102

(C.13:1E-99.16);

(10) Conformity with the State highway access management code adopted by the Commissioner of

Transportation under section 3 of the "State Highway Access Management Act," P.L.1989, c.32 (C.27:7-91),

with respect to any State highways within the municipality;

(11) Conformity with any access management code adopted by the county under R.S.27:16-1, with respect

to any county roads within the municipality;

(12) Conformity with any municipal access management code adopted under R.S.40:67-1, with respect to

municipal streets;

(13) Protection of potable water supply reservoirs from pollution or other degradation of water quality

resulting from the development or other uses of surrounding land areas, which provisions shall be in

accordance with any siting, performance, or other standards or guidelines adopted therefor by the

Department of Environmental Protection;

(14) Conformity with the public safety regulations concerning storm water detention facilities adopted

pursuant to section 5 of P.L.1991, c.194 (C.40:55D-95.1) and reflected in storm water management plans

and storm water management ordinances adopted pursuant to P.L.1981, c.32 (C.40:55D-93 et al.); and

(15) Conformity with the model ordinance promulgated by the Department of Environmental Protection and

Department of Community Affairs pursuant to section 2 of P.L.1993, c.81 (C.13:1E-99.13a) regarding the

inclusion of facilities for the collection or storage of source separated recyclable materials in any new

multifamily housing development.

NJ State Planning 1997 Municipal Land Use Law 28

c. Provisions governing the standards for grading, improvement and construction of streets or drives and for

any required walkways, curbs, gutters, streetlights, shade trees, fire hydrants and water, and drainage and

sewerage facilities and other improvements as shall be found necessary, and provisions ensuring that such

facilities shall be completed either prior to or subsequent to final approval of the subdivision or site plan by

allowing the posting of performance bonds by the developer;

d. Provisions ensuring that when a municipal zoning ordinance is in effect, a subdivision or site plan shall

conform to the applicable provisions of the zoning ordinance, and where there is no zoning ordinance,

appropriate standards shall be specified in an ordinance pursuant to this article; and

e. Provisions ensuring performance in substantial accordance with the final development plan; provided that

the planning board may permit a deviation from the final plan, if caused by change of conditions beyond the

control of the developer since the date of final approval, and the deviation would not substantially alter the

character of the development or substantially impair the intent and purpose of the master plan and zoning

ordinance.

L.1975,c.291,s.29; amended 1980,c.146,s.3; 1983,c.260,s.11; 1985,c.516,s.12; 1987,c.102,s.27;

1989,c.32,s.24; 1989,c.208; 1991,c.194,s.4; 1991,c.445,s.8; 1993,c.81,s.1.

40:55D-39. Discretionary contents of ordinance

Discretionary contents of ordinance. An ordinance requiring approval by the planning board of either

subdivisions or site plans or both may include the following:

a. Provisions for off-tract water, sewer, drainage, and street improvements which are necessitated by a

subdivision or land development, subject to the provisions of section 30;

b. Provisions for standards encouraging and promoting flexibility, and economy in layout and design

through the use of planned unit development, planned unit residential development and residential cluster;

provided that such standards shall be appropriate to the type of development permitted; and provided further

that the ordinance shall set forth the limits and extent of any special provisions applicable to such planned

developments, so that the manner in which such special provisions differ from the standards otherwise

applicable to subdivisions or site plans can be determined;

c. Provisions for planned development:

(1) Authorizing the planning board to grant general development plan approval to provide the increased

flexibility desirable to promote mutual agreement between the applicant and the planning board on the basic

scheme of a planned development and setting forth any variations from the ordinary standards for

preliminary and final approval;

(2) Requiring that any common open space resulting from the application of standards for density, or

intensity of land use, be set aside for the use and benefit of the owners or residents in such development

subject to section 31 of this act;

(3) Setting forth how the amount and location of any common open space shall be determined and how its

improvement and maintenance for common open space use shall be secured subject to section 31 of this act;

(4) Authorizing the planning board to allow for a greater concentration of density, or intensity of land use,

within a section or sections of development, whether it be earlier, later or simultaneous in the development,

than in others;

(5) Setting forth any requirement that the approval by the planning board of a greater concentration of

density or intensity of land use for any section to be developed be offset by a smaller concentration in any

completed prior stage or by an appropriate reservation of common open space on the remaining land by

grant of easement or by covenant in favor of the municipality; provided that such reservation shall, as far as

practicable, defer the precise location of common open space until an application for final approval is filed,

so that flexibility of development can be maintained;

NJ State Planning 1997 Municipal Land Use Law 29

(6) Setting forth any requirements for timing of development among the various types of uses and subgroups

thereunder and, in the case of planned unit development and planned unit residential development, whether

some nonresidential uses are required to be built before, after or at the same time as the residential uses.

d. Provisions ensuring in the case of a development which proposes construction over a period of years, the

protection of the interests of the public and of the residents, occupants and owners of the proposed

development in the total completion of the development.

e. Provisions that require as a condition for local municipal approval the submission of proof that no taxes or

assessments for local improvements are due or delinquent on the property for which any subdivision, site

plan, or planned development application is made.

f. Provisions for the creation of a Site Plan Review Advisory Board for the purpose of reviewing all site plan

applications and making recommendations to the planning board in regard thereto.

P.L. 1975,c.291;amended 1987,c.129,s.2.

40:55D-40. Discretionary contents of subdivision ordinance

An ordinance requiring subdivision approval by the planning board pursuant to this article may also include:

a. Provisions for minor subdivision approval pursuant to section 35 of this act; and

b. Standards encouraging and promoting flexibility, economy and environmental soundness in layout and

design in accordance with which the planning board may approve the varying, within a conventional

subdivision, of lot areas and dimensions, and yards and setbacks otherwise required by municipal

development regulations in such a way that the average lot areas and dimensions, yards and setbacks within

the subdivision conform to the conventional norms of the municipal development regulations; provided that

such standards shall be appropriate to the type of development permitted.

L.1975, c. 291, s. 29.2, eff. Aug. 1, 1976.

40:55D-40.1. Definitions

1. As used in this act:

"Board" means the Site Improvement Advisory Board established by this act;

"Commissioner" means the Commissioner of Community Affairs;

"Department" means the Department of Community Affairs; and

"Site improvement" means any construction work on, or improvement in connection with, residential

development, and shall be limited to, streets, roads, parking facilities, sidewalks, drainage structures, and

utilities.

L.1993,c.32,s.1.

40:55D-40.2. Findings, declarations

2. The Legislature hereby finds and declares that:

a. The multiplicity of standards for subdivisions and site improvements that currently exists in this State

increases the costs of housing without commensurate gains in the protection of the public health and safety;

b. It is in the public interest to avoid unnecessary cost in the construction process and uniform site

improvement standards that are both sound and cost effective will advance this goal;

c. Adoption of uniform site improvement standards will satisfy the need to ensure predictability;

d. The public interest is best served by having development review based, to the greatest extent possible,

upon sound, objective site improvement standards rather than upon discretionary design standards;

NJ State Planning 1997 Municipal Land Use Law 30

e. The goal of streamlining the development approval process by improving the efficiency of the application

process is best served by the establishment of a uniform set of technical site improvement standards for land

development which represents a consensus of informed and interested parties and which adequately

addresses their concerns;

f. In order to provide the widest possible range of design freedom and promote diversity, technical

requirements should be based upon uniform site improvement standards; and

g. The policymaking aspects of development review are best separated from the making of technical

determinations.

L.1993,c.32,s.2.

40:55D-40.3. Site Improvement Advisory Board

3. a. There is established in, but not of, the department a Site Improvement Advisory Board, to devise

statewide site improvement standards pursuant to section 4 of this act. The board shall consist of the

commissioner or his designee, who shall be a non-voting member of the board, the Director of the Division

of Housing in the Department of Community Affairs, who shall be a voting member of the board, and 10

other voting members, to be appointed by the commissioner. The other members shall include two

professional planners, one of whom serves as a planner for a governmental entity or whose professional

experience is predominantly in the public sector and who has worked in the public sector for at least the

previous five years and the other of whom serves as a planner in private practice and has particular expertise

in private residential development and has been involved in private sector planning for at least the previous

five years, and one representative each from:

(1) The New Jersey Society of Professional Engineers;

(2) The New Jersey Society of Municipal Engineers;

(3) The New Jersey Association of County Engineers;

(4) The New Jersey Federation of Planning Officials;

(5) The Council on Affordable Housing;

(6) The New Jersey Builders' Association;

(7) The New Jersey Institute of Technology;

(8) The New Jersey State League of Municipalities.

b. Among the members to be appointed by the commissioner who are first appointed, four shall be appointed

for terms of two years each, four shall be appointed for terms of three years each, and two shall be appointed

for terms of four years each. Thereafter, each appointee shall serve for a term of four years. Vacancies in the

membership shall be filled in the same manner as original appointments are made, for the unexpired term.

The commission shall select from among its members a chairman. Members may be removed by the

commissioner for cause.

c. Board members shall serve without compensation, but may be entitled to reimbursement, from moneys

appropriated or otherwise made available for the purposes of this act, for expenses incurred in the

performance of their duties.

L.1993,c.32,s.3.

NJ State Planning 1997 Municipal Land Use Law 31

40:55D-40.4. Submission of recommendations for Statewide site improvement standards for

residential development

4. a. The board shall, no later than 180 days following the appointment of its full membership, prepare and

submit to the commissioner recommendations for Statewide site improvement standards for residential

development. The site improvement standards shall implement the recommendations with respect to streets,

off-street parking, water supply, sanitary sewers and storm water management of Article Six (with the

exhibits appended thereto) of the January 1987 "Model Subdivision and Site Plan Ordinance" prepared for

the department by The Center for Urban Policy Research at Rutgers, The State University, except to the

extent that the recommendations set forth in the "Model Subdivision and Site Plan Ordinance" are

inconsistent with the requirements of other law; provided, however, that, in the case of inconsistency

between the "Model Subdivision and Site Plan Ordinance" and the "Municipal Land Use Law," P.L.1975,

c.291 (C.40:55D-1 et seq.), the site improvement standards recommended by the board shall conform to the

provisions of the "Model Subdivision and Site Plan Ordinance;" and provided, further, that the board may in

developing its recommendations, replace or modify any of the specific standards set forth in the aforesaid

model ordinance in light of any recommended site improvement standards promulgated under similarly

authoritative auspices of any academic or professional institution or organization.

In addition to those recommended standards, the board shall develop, and shall submit with recommendation

to the commissioner, a model application form for use throughout the State.

At the time the board submits its recommendations for Statewide site improvement standards and a model

Statewide application form, the board shall submit to the commissioner, the Governor and the Legislature

any recommendations it may deem necessary, in view of the recommended site improvement standards and

the model statewide application form, for changes in the "Municipal Land Use Law," P.L.1975, c.291

(C.40:55D-1 et seq.).

b. The commissioner shall review the recommendations submitted by the board and, following his review,

shall establish, by regulation adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410

(C.52:14B-1 et seq.), a set of Statewide site improvement standards to be followed by municipalities in

granting development approval pursuant to P.L.1975, c.291 (C.40:55D-1 et seq.) and a standard application

form that shall be used throughout the State. The commissioner shall promulgate the recommendations of

the board with regard to Statewide site improvement standards without making a change in any

recommended standard unless, in the commissioner's judgment, a standard would: (1) place an unfair

economic burden on some municipalities or developers relative to others; or (2) result in a danger to the

public health or safety. The commissioner may veto any site improvement standard on the abovementioned

grounds; however, any veto of the commissioner may be overridden by a two-thirds vote of the board. The

regulations shall be adopted within one year of their submission by the board to the commissioner.

c. A municipality or developer may seek a waiver of any site improvement standard adopted by the board in

connection with a specific development if, in the judgment of the municipal engineer or the developer, to

adhere to the standard would jeopardize the public health and safety. Any application for a waiver shall be

submitted in writing to the commissioner, who shall direct the application to a technical subcommittee, as

described below, if the commissioner deems the application to be justified according to the standards set

forth in this subsection. The technical subcommittee shall consist of those representatives set forth in

paragraphs (1), (2) and (6) of subsection a. of section 3 of this act appointed by the commissioner to serve on

the Site Improvement Advisory Board. Any decision of the technical subcommittee shall be adopted by

resolution explaining the subcommittee's rationale for granting the waiver. The subcommittee shall render its

decision within 30 days of the commissioner's determination that the application is justified. Any decision of

the technical subcommittee may be appealed to the entire board; however, the board shall render any final

decision of an appeal within 10 days of the hearing on the appeal and the decision of the full board shall be

final. The waiver process shall not extend the time guidelines which constrain development applications

which are set forth in the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).

NJ State Planning 1997 Municipal Land Use Law 32

d. The board shall annually review the regulations adopted pursuant to subsection b. of this section, and shall

recommend to the commissioner any changes in those regulations which the board deems necessary based

on recommended site improvement standards promulgated under the authoritative auspices of any academic

or professional institution or organization. Any changes made in the regulations pursuant to this subsection

shall be made according to the same procedure and shall be subject to the same waiver provisions as those

set forth in subsections a., b. and c. of this section.

L.1993,c.32,s.4.

40:55D-40.5. Supersedure of site improvement standards

5. Notwithstanding any provision to the contrary of the "Municipal Land Use Law," P.L.1975, c.291

(C.40:55D-1 et seq.), the standards set forth in the regulations adopted pursuant to subsection b. of section 4

of this act shall supersede any site improvement standards incorporated within the development ordinances

of any municipality, as provided hereunder. The regulations adopted by the commissioner pursuant to

subsection b. of section 4 of this act and any subsequent amendments thereto shall take effect 180 days

following the adoption of those regulations and any municipal ordinances in effect on that date shall be

deemed to have been repealed and have no further force or effect; provided, however, that the development

ordinances of any municipality shall continue to govern any project which has received preliminary approval

on or before the effective date of any site improvement standards or amendments adopted thereto.

L.1993,c.32,s.5.

40:55D-40.6. Municipal zoning power not limited

6. Nothing contained in this act shall in any way limit the zoning power of any municipality.

L.1993,c.32,s.6.

40:55D-40.7. Construction of act

7. a. Nothing in this act shall be construed to modify the provisions of the "Pinelands Protection Act,"

P.L.1979, c.111 (C.13:18A-1 et seq.) or any regulations promulgated pursuant thereto and section 502 of the

"National Parks and Recreation Act of 1978" (Pub.L 95-625).

b. Nothing in this act shall be construed to prohibit, preempt or in any way affect the exercise of any

authority by the State or any county government with respect to site improvements conferred by any other

State law or regulation promulgated thereunder.

L.1993,c.32,s.7.

40:55D-41. Contents of site plan ordinance

Contents of site plan ordinance. An ordinance requiring site plan review and approval pursuant to this article

shall include and shall be limited to, except as provided in sections 29 and 29.1 of this act standards and

requirements relating to:

a. Preservation of existing natural resources on the site;

b. Safe and efficient vehicular and pedestrian circulation, parking and loading;

c. Screening, landscaping and location of structures;

d. Exterior lighting needed for safety reasons in addition to any requirements for street lighting;

e. Conservation of energy and use of renewable energy sources; and

f. Recycling of designated recyclable materials.

L. 1975, c. 291, s. 41; amended by L. 1980, c. 146, s. 4; 1987, c. 102, s. 28.

NJ State Planning 1997 Municipal Land Use Law 33

40:55D-42. Contribution for off-tract water, sewer, drainage, and street improvements

The governing body may by ordinance adopt regulations requiring a developer, as a condition for approval

of a subdivision or site plan, to pay his pro-rata share of the cost of providing only reasonable and necessary

street improvements and water, sewerage and drainage facilities, and easements therefor, located outside the

property limits of the subdivision or development but necessitated or required by construction or

improvements within such subdivision or development. Such regulations shall be based on circulation and

comprehensive utility service plans pursuant to subsections 19b.(4) and 19b.(5) of this act, respectively, and

shall establish fair and reasonable standards to determine the proportionate or pro-rata amount of the cost of

such facilities that shall be borne by each developer or owner within a related and common area, which

standards shall not be altered subsequent to preliminary approval. Where a developer pays the amount

determined as his pro-rata share under protest he shall institute legal action within 1 year of such payment in

order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount.

L.1975, c. 291, s. 30, eff. Aug. 1, 1976.

40:55D-43. Standards for the establishment of open space organization

a. An ordinance pursuant to this article permitting planned unit development, planned unit residential

development or residential cluster may provide that the municipality or other governmental agency may, at

any time and from time to time, accept the dedication of land or any interest therein for public use and

maintenance, but the ordinance shall not require, as a condition of the approval of a planned development,

that land proposed to be set aside for common open space be dedicated or made available to public use.

An ordinance pursuant to this article providing for planned unit development, planned unit residential

development, or residential cluster shall require that the developer provide for an organization for the

ownership and maintenance of any open space for the benefit of owners or residents of the development, if

said open space is not dedicated to the municipality or other governmental agency. Such organization shall

not be dissolved and shall not dispose of any open space, by sale or otherwise, except to an organization

conceived and established to own and maintain the open space for the benefit of such development, and

thereafter such organization shall not be dissolved or dispose of any of its open space without first offering

to dedicate the same to the municipality or municipalities wherein the land is located.

NJ State Planning 1997 Municipal Land Use Law 34

b. In the event that such organization shall fail to maintain the open space in reasonable order and condition,

the municipal body or officer designated by ordinance to administer this subsection may serve written notice

upon such organization or upon the owners of the development setting forth the manner in which the

organization has failed to maintain the open space in reasonable condition, and said notice shall include a

demand that such deficiencies of maintenance be cured within 35 days thereof, and shall state the date and

place of a hearing thereon which shall be held within 15 days of the notice. At such hearing, the designated

municipal body or officer, as the case may be, may modify the terms of the original notice as to deficiencies

and may give a reasonable extension of time not to exceed 65 days within which they shall be cured. If the

deficiencies set forth in the original notice or in the modification thereof shall not be cured within said 35

days or any permitted extension thereof, the municipality, in order to preserve the open space and maintain

the same for a period of 1 year may enter upon and maintain such land. Said entry and maintenance shall not

vest in the public any rights to use the open space except when the same is voluntarily dedicated to the

public by the owners. Before the expiration of said year, the designated municipal body or officer, as the

case may be, shall, upon its initiative or upon the request of the organization theretofore responsible for the

maintenance of the open space, call a public hearing upon 15 days written notice to such organization and to

the owners of the development, to be held by such municipal body or officer, at which hearing such

organization and the owners of the development shall show cause why such maintenance by the municipality

shall not, at the election of the municipality, continue for a succeeding year. If the designated municipal

body or officer, as the case may be, shall determine that such organization is ready and able to maintain said

open space in reasonable condition, the municipality shall cease to maintain said open space at the end of

said year. If the municipal body or officer, as the case may be, shall determine such organization is not ready

and able to maintain said open space in a reasonable condition, the municipality may, in its discretion,

continue to maintain said open space during the next succeeding year, subject to a similar hearing and

determination, in each year thereafter. The decision of the municipal body or officer in any such case shall

constitute a final administrative decision subject to judicial review.

If a municipal body or officer is not designated by ordinance to administer this subsection, the governing

body shall have the same powers and be subject to the same restrictions as provided in this subsection.

c. The cost of such maintenance by the municipality shall be assessed pro rata against the properties within

the development that have a right of enjoyment of the open space in accordance with assessed value at the

time of imposition of the lien, and shall become a lien and tax on said properties and be added to and be a

part of the taxes to be levied and assessed thereon, and enforced and collected with interest by the same

officers and in the same manner as other taxes.

L.1975, c. 291, s. 31, eff. Aug. 1, 1976.

40:55D-44. Reservation of public areas

If the master plan or the official map provides for the reservation of designated streets, public drainageways,

flood control basins, or public areas within the proposed development, before approving a subdivision or site

plan, the planning board may further require that such streets, ways, basins or areas be shown on the plat in

locations and sizes suitable to their intended uses. The planning board may reserve the location and extent of

such streets, ways, basins or areas shown on the plat for a period of 1 year after the approval of the final plat

or within such further time as may be agreed to by the developer. Unless during such period or extension

thereof the municipality shall have entered into a contract to purchase or institute condemnation proceedings

according to law for the fee or a lesser interest in the land comprising such streets, ways, basins or areas, the

developer shall not be bound by such reservations shown on the plat and may proceed to use such land for

private use in accordance with applicable development regulations. The provisions of this section shall not

apply to the streets and roads, flood control basins or public drainageways necessitated by the subdivision or

land development and required for final approval.

NJ State Planning 1997 Municipal Land Use Law 35

The developer shall be entitled to just compensation for actual loss found to be caused by such temporary

reservation and deprivation of use. In such instance, 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 the land

reserved for the period of reservation; provided that determination of such fair market value shall include,

but not be limited to, consideration of 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 cost 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 municipality shall provide by ordinance

for a procedure for the payment of all compensation payable under this section.

L.1975, c. 291, s. 32, eff. Aug. 1, 1976.

40:55D-45. Findings for planned developments

Every ordinance pursuant to this article that provides for planned developments shall require that prior to

approval of such planned developments the planning board shall find the following facts and conclusions:

a. That departures by the proposed development from zoning regulations otherwise applicable to the subject

property conform to the zoning ordinance standards pursuant to subsection 52c. of this act;

b. That the proposals for maintenance and conservation of the common open space are reliable, and the

amount, location and purpose of the common open space are adequate;

c. That provision through the physical design of the proposed development for public services, control over

vehicular and pedestrian traffic, and the amenities of light and air, recreation and visual enjoyment are

adequate;

d. That the proposed planned development will not have an unreasonably adverse impact upon the area in

which it is proposed to be established;

e. In the case of a proposed development which contemplates construction over a period of years, that the

terms and conditions intended to protect the interests of the public and of the residents, occupants and

owners of the proposed development in the total completion of the development are adequate.

L.1975, c. 291, s. 33, eff. Aug. 1, 1976.

40:55D-45.1. General development plan

a. The general development plan shall set forth the permitted number of dwelling units, the amount of

nonresidential floor space, the residential density, and the nonresidential floor area ratio for the planned

development, in its entirety, according to a schedule which sets forth the timing of the various sections of the

development.

The planned development shall be developed in accordance with the general development plan approved by

the planning board notwithstanding any provision of P.L. 1975, c. 291 (C. 40:55D-1 et seq.), or an ordinance

or regulation adopted pursuant thereto after the effective date of the approval.

b. The term of the effect of the general development plan approval shall be determined by the planning

board using the guidelines set forth in subsection c. of this section, except that the term of the effect of the

approval shall not exceed 20 years from the date upon which the developer receives final approval of the

first section of the planned development pursuant to P.L. 1975, c. 291 (C. 40:55D-1 et seq.).

c. In making its determination regarding the duration of the effect of approval of the development plan, the

planning board shall consider: the number of dwelling units or amount of nonresidential floor area to be

constructed, prevailing economic conditions, the timing schedule to be followed in completing the

development and the likelihood of its fulfillment, the developer's capability of completing the proposed

development, and the contents of the general development plan and any conditions which the planning board

attaches to the approval thereof.

NJ State Planning 1997 Municipal Land Use Law 36

L. 1987, c. 129, s. 3.

40:55D-45.2. Contents of general development plan

A general development plan may include, but not be limited to, the following:

a. A general land use plan at a scale specified by ordinance indicating the tract area and general locations of

the land uses to be included in the planned development. The total number of dwelling units and amount of

nonresidential floor area to be provided and proposed land area to be devoted to residential and

nonresidential use shall be set forth. In addition, the proposed types of nonresidential uses to be included in

the planned development shall be set forth, and the land area to be occupied by each proposed use shall be

estimated. The density and intensity of use of the entire planned development shall be set forth, and a

residential density and a nonresidential floor area ratio shall be provided;

b. A circulation plan showing the general location and types of transportation facilities, including facilities

for pedestrian access, within the planned development and any proposed improvements to the existing

transportation system outside the planned development;

c. An open space plan showing the proposed land area and general location of parks and any other land area

to be set aside for conservation and recreational purposes and a general description of improvements

proposed to be made thereon, including a plan for the operation and maintenance of parks and recreational

lands;

d. A utility plan indicating the need for and showing the proposed location of sewage and water lines, any

drainage facilities necessitated by the physical characteristics of the site, proposed methods for handling

solid waste disposal, and a plan for the operation and maintenance of proposed utilities;

e. A storm water management plan setting forth the proposed method of controlling and managing storm

water on the site;

f. An environmental inventory including a general description of the vegetation, soils, topography, geology,

surface hydrology, climate and cultural resources of the site, existing man-made structures or features and

the probable impact of the development on the environmental attributes of the site;

g. A community facility plan indicating the scope and type of supporting community facilities which may

include, but not be limited to, educational or cultural facilities, historic sites, libraries, hospitals, firehouses,

and police stations;

h. A housing plan outlining the number of housing units to be provided and the extent to which any housing

obligation assigned to the municipality pursuant to P.L. 1985, c. 222 (C. 52:27D-301 et al.) will be fulfilled

by the development;

i. A local service plan indicating those public services which the applicant proposes to provide and which

may include, but not be limited to, water, sewer, cable and solid waste disposal;

j. A fiscal report describing the anticipated demand on municipal services to be generated by the planned

development and any other financial impacts to be faced by municipalities or school districts as a result of

the completion of the planned development. The fiscal report shall also include a detailed projection of

property tax revenues which will accrue to the county, municipality and school district according to the

timing schedule provided under subsection k. of this section, and following the completion of the planned

development in its entirety;

k. A proposed timing schedule in the case of a planned development whose construction is contemplated

over a period of years, including any terms or conditions which are intended to protect the interests of the

public and of the residents who occupy any section of the planned development prior to the completion of

the development in its entirety; and

NJ State Planning 1997 Municipal Land Use Law 37

l. A municipal development agreement, which shall mean a written agreement between a municipality and a

developer relating to the planned development.

L. 1987, c. 129, s. 4.

40:55D-45.3. Submission of general development plan

a. Any developer of a parcel of land greater than 100 acres in size for which the developer is seeking

approval of a planned development pursuant to P.L. 1975, c. 291 (C. 40:55D-1 et seq.) may submit a general

development plan to the planning board prior to the granting of preliminary approval of that development by

the planning board pursuant to section 34 of P.L. 1975, c. 291 (C. 40:55D-46) or section 36 of P.L. 1975, c.

291 (C. 40:55D-48).

b. The planning board shall grant or deny general development plan approval within 95 days after

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 general development plan approval of the planned development.

L. 1987, c. 129, s. 5.

40:55D-45.4. Modification of timing schedule

In the event that the developer seeks to modify the proposed timing schedule, such modification shall require

the approval of the planning board. The planning board shall, in deciding whether or not to grant approval of

the modification, take into consideration prevailing economic and market conditions, anticipated and actual

needs for residential units and nonresidential space within the municipality and the region, and the

availability and capacity of public facilities to accommodate the proposed development.

L. 1987, c. 129, s. 6.

40:55D-45.5. Variation approval

a. Except as provided hereunder, the developer shall be required to gain the prior approval of the planning

board if, after approval of the general development plan, the developer wishes to make any variation in the

location of land uses within the planned development or to increase the density of residential development or

the floor area ratio of nonresidential development in any section of the planned development.

b. Any variation in the location of land uses or increase in density or floor area ratio proposed in reaction to

a negative decision of, or condition of development approval imposed by, the Pinelands Commission

pursuant to P.L. 1979, c. 111 (C. 13:18A-1 et seq.) or the Department of Environmental Protection pursuant

to P.L. 1973, c. 185 (C. 13:19-1 et seq.) shall be approved by the planning board if the developer can

demonstrate, to the satisfaction of the planning board, that the variation being proposed is a direct result of

such determination by the Pinelands Commission or the Department of Environmental Protection, as the

case may be.

L. 1987, c. 129, s. 7.

40:55D-45.6. Revision of general development plan

a. Except as provided hereunder, once a general development plan has been approved by the planning board,

it may be amended or revised only upon application by the developer approved by the planning board.

b. A developer, without violating the terms of the approval pursuant to this act, may, in undertaking any

section of the planned development, reduce the number of residential units or amounts of nonresidential

floor space by no more than 15% or reduce the residential density or nonresidential floor area ratio by no

more than 15%; provided, however, that a developer may not reduce the number of residential units to be

provided pursuant to P.L.1985, c. 222 (C. 52:27D-301 et al.), without prior municipal approval.

L. 1987, c. 129, s. 8.

NJ State Planning 1997 Municipal Land Use Law 38

40:55D-45.7. Notification of completion

a. Upon the completion of each section of the development as set forth in the approved general development

plan, the developer shall notify the administrative officer, by certified mail, as evidence that the developer is

fulfilling his obligations under the approved plan. For the purposes of this section, "completion" of any

section of the development shall mean that the developer has acquired a certificate of occupancy for every

residential unit or every nonresidential structure, as set forth in the approved general development plan and

pursuant to section 15 of P.L.1975, c. 217 (C. 52:27D-133). If the municipality does not receive such

notification at the completion of any section of the development, the municipality shall notify the developer,

by certified mail, in order to determine whether or not the terms of the approved plan are being complied

with.

If a developer does not complete any section of the development within eight months of the date provided

for in the approved plan, or if at any time the municipality has cause to believe that the developer is not

fulfilling his obligations pursuant to the approved plan, the municipality shall notify the developer, by

certified mail, and the developer shall have 10 days within which to give evidence that he is fulfilling his

obligations pursuant to the approved plan. The municipality thereafter shall conduct a hearing to determine

whether or not the developer is in violation of the approved plan. If, after such a hearing, the municipality

finds good cause to terminate the approval, it shall provide written notice of same to the developer and the

approval shall be terminated 30 days thereafter.

b. In the event that a developer who has general development plan approval does not apply for preliminary

approval for the planned development which is the subject of that general development plan approval within

five years of the date upon which the general development plan has been approved by the planning board,

the municipality shall have cause to terminate the approval.

L. 1987, c. 129, s. 9.

40:55D-45.8. Approval terminated upon completion

In the event that a development which is the subject of an approved general development plan is completed

before the end of the term of the approval, the approval shall terminate with the completion of the

development. For the purposes of this section, a development shall be considered complete on the date upon

which a certificate of occupancy has been issued for the final residential or nonresidential structure in the

last section of the development in accordance with the timing schedule set forth in the approved general

development plan and the developer has fulfilled all of his obligations pursuant to the approval.

L. 1987, c. 129, s. 10.

40:55D-46. Procedure for preliminary site plan approval

a. An ordinance requiring site plan review and approval shall require that the developer submit to the

administrative officer a site plan and such other information as is reasonably necessary to make an informed

decision as to whether the requirements necessary for preliminary site plan approval have been met. The site

plan and any engineering documents to be submitted shall be required in tentative form for discussion

purposes for preliminary approval. If any architectural plans are required to be submitted for site plan

approval, the preliminary plans and elevations shall be sufficient.

b. If the planning board required any substantial amendment in the layout of improvements proposed by the

developer that have been the subject of a hearing, an amended application for development shall be

submitted and proceeded upon, as in the case of the original application for development. The planning

board shall, if the proposed development complies with the ordinance and this act, grant preliminary site

plan approval.

NJ State Planning 1997 Municipal Land Use Law 39

c. Upon the submission to the administrative officer of a complete application for a site plan which involves

10 acres of land or less, and 10 dwelling units or less, the planning board shall grant or deny preliminary

approval within 45 days of the date of such submission or within such further time as may be consented to

by the developer. Upon the submission of a complete application for a site plan which involves more than 10

acres, or more than 10 dwelling units, the planning board shall grant or deny preliminary approval within 95

days of the date of such submission or within such further time as may be consented to by the developer.

Otherwise, the planning board shall be deemed to have granted preliminary approval of the site plan.

L.1975, c. 291, s. 34, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 15; L.1984, c. 20, s. 8, eff. March 22,

1984.

40:55D-46.1. Minor site plan; approval

14. An ordinance requiring, pursuant to section 7.1 of P.L.1975, c.291 (C.40:55D-12), notice of hearings on

applications for development for conventional site plans, may authorize the planning board to waive notice

and public hearing for an application for development, if the planning board or site plan subcommittee of the

board appointed by the chairman finds that the application for development conforms to the definition of

"minor site plan." Minor site plan approval shall be deemed to be final approval of the site plan 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, 29.3 and 41 of P.L.1975, c.291 (C.40:55D-38, 40:55D-39,

40:55D-41 and 40:55D-53).

a. Minor site plan 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 site plan approval.

b. Whenever review or approval of the application by the county planning board is required by section 8 of

P.L.1968, c.285 (C.40:27-6.6), 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.

c. The zoning requirements and general terms and conditions, whether conditional or otherwise, upon which

minor site plan approval was granted, shall not be changed for a period of two years after the date of minor

site plan approval. The planning board shall grant an extension of this period 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 approvals. A

developer shall apply for this extension before: (1) what would otherwise be the expiration date, or (2) the

91st day after the date on which the developer receives the last of the legally required approvals from the

other governmental entities, whichever occurs later.

L.1979,c.216,s.14; amended 1991,c.256,s.8.

40:55D-47. Minor subdivision

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).

NJ State Planning 1997 Municipal Land Use Law 40

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 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 the extension 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.

L.1975,c.291,s.35; amended 1991,c.256,s.9.

NJ State Planning 1997 Municipal Land Use Law 41

40:55D-48. Procedure for preliminary major subdivision approval

a. An ordinance requiring subdivision approval by the planning board shall require that the developer submit

to the administrative officer a plat and such other information as is reasonably necessary to make an

informed decision as to whether the requirements necessary for preliminary approval have been met;

provided that minor subdivisions pursuant to section 35 of this act shall not be subject to this section. The

plat and any other engineering documents to be submitted shall be required in tentative form for discussion

purposes for preliminary approval.

b. If the planning board required any substantial amendment in the layout of improvements proposed by the

developer that have been the subject of a hearing, an amended application shall be submitted and proceeded

upon, as in the case of the original application for development. The planning board shall, if the proposed

subdivision complies with the ordinance and this act, grant preliminary approval to the subdivision.

c. Upon the submission to the administrative officer of a complete application for a subdivision of 10 or

fewer lots, the planning board shall grant or deny preliminary approval within 45 days of the date of such

submission or within such further time as may be consented to by the developer. Upon the submission of a

complete application for a subdivision of more than 10 lots, the planning board shall grant or deny

preliminary approval within 95 days of the date of such submission or within such further time as may be

consented to by the developer. Otherwise, the planning board shall be deemed to have granted preliminary

approval to the subdivision.

L.1975, c. 291, s. 36, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 16; L.1984, c. 20, s. 9, eff. March 22,

1984.

40:55D-48.1. Application by corporation or partnership; list of stockholders owning 10% of stock or

10% interest in partnership

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 shall list the names and addresses of all stockholders or individual partners owning at

least 10% of its stock of any class or at least 10% of the interest in the partnership, as the case may be.

L.1977, c. 336, s. 1, eff. Jan. 24, 1978.

40:55D-48.2. Disclosure of 10% ownership interest of corporation or partnership which is 10% owner

of applying corporation or partnership

If a corporation or partnership owns 10% or more of the stock of a corporation, or 10% or greater interest in

a partnership, subject to disclosure pursuant to section 1 of this act, that corporation or partnership shall list

the names and addresses of its stockholders 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.

L.1977, c. 336, s. 2, eff. Jan. 24, 1978.

40:55D-48.3. Failure to comply with act; disapproval of application

No planning board, board of adjustment or municipal governing body shall approve the application of any

corporation or partnership which does not comply with this act.

L.1977, c. 336, s. 3, eff. Jan. 24, 1978.

NJ State Planning 1997 Municipal Land Use Law 42

40:55D-48.4. Concealing ownership interest; fine

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,

shall be subject to a fine of $1,000.00 to $10,000.00 which shall be recovered 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.).

L.1977, c. 336, s. 4, eff. Jan. 24, 1978.

40:55D-49. Effect of preliminary approval

37. Effect of preliminary approval. Preliminary approval of a major subdivision pursuant to section 36 of

P.L.1975, c.291 (C.40:55D-48) or of a site plan pursuant to section 34 of P.L.1975, c.291 (C.40:55D-46)

shall, except as provided in subsection d. of this section, 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 section 29.3 of P.L.1975, c.291 (C.40:55D-41); except 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 a section or sections of the preliminary subdivision plat or site plan, as the case may be; and

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 year but not to exceed a total extension of two 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 50 acres or more, the planning board may grant

the rights referred to in subsections a., b., and c. of this section for such period of time, longer than three

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 preliminary approval, (2)

economic conditions, and (3) the comprehensiveness of the development. The applicant may apply for

thereafter and the planning board may thereafter grant an extension to preliminary 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 preliminary

approval, and (2) the potential number of dwelling units and nonresidential floor area of the section or

sections awaiting final approval, (3) economic conditions and (4) the comprehensiveness of the

development; provided that if 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.

NJ State Planning 1997 Municipal Land Use Law 43

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. or d. of this

section.

L.1975,c.291,s.37; amended 1991,c.256,s.10.

40:55D-50. Final approval of site plans and major subdivisions

a. The planning board shall grant final approval if the detailed drawings, specifications and estimates of the

application for final approval conform to the standards established by ordinance for final approval, the

conditions of preliminary approval and, in the case of a major subdivision, the standards prescribed by the

"Map Filing Law," P.L.1960, c. 141 (C. 46:23-9.9 et seq.); provided that in the case of a planned unit

development, planned unit residential development or residential cluster, the planning board may permit

minimal deviations from the conditions of preliminary approval necessitated by change of conditions beyond

the control of the developer since the date of preliminary approval without the developer being required to

submit another application for development for preliminary approval.

b. Final approval shall be granted or denied within 45 days after 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 final 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.

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 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.

L.1975, c. 291, s. 38, eff. Aug. 1, 1976.

40:55D-51. Exception in application of subdivision or site plan regulation; simultaneous review and

approval

a. The planning board when acting upon applications for preliminary or minor subdivision approval shall

have the power to grant such exceptions from the requirements for subdivision approval as may be

reasonable and within the general purpose and intent of the provisions for subdivision review and approval

of an ordinance adopted pursuant to this article, if the literal enforcement of one or more provisions of the

ordinance is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land

in question.

b. The planning board when acting upon applications for preliminary site plan approval shall have the power

to grant such exceptions from the requirements for site plan approval as may be reasonable and within the

general purpose and intent of the provisions for site plan review and approval of an ordinance adopted

pursuant to this article, if the literal enforcement of one or more provisions of the ordinance is impracticable

or will exact undue hardship because of peculiar conditions pertaining to the land in question.

NJ State Planning 1997 Municipal Land Use Law 44

c. The planning board shall have the power to review and approve or deny conditional uses or site plans

simultaneously with review for subdivision approval without the developer being required to make further

application to the planning board, or the planning board being required to hold further hearings. The longest

time period for action by the planning board, whether it be for subdivision, conditional use or site plan

approval, shall apply. Whenever approval of a conditional use is requested by the developer pursuant to this

subsection, notice of the hearing on the plat shall include reference to the request for such conditional use.

L.1975, c. 291, s. 39, eff. Aug. 1, 1976.

40:55D-52. Effect of final approval of a site plan or major subdivision

40. Effect of final approval of a site plan or major subdivision. a. The zoning requirements applicable to the

preliminary approval first granted and all other rights conferred upon the developer pursuant to section 37 of

P.L.1975, c.291 (C.40:55D-49), whether conditionally or otherwise, shall not be changed for a period of two

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 planning board may extend such period of

protection for extensions of one year but not to exceed three extensions. Notwithstanding any other

provisions of this act, 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.

b. In the case of a subdivision or site plan for a planned development of 50 acres or more, conventional

subdivision or site plan for 150 acres or more, or site plan for development of a nonresidential floor area of

200,000 square feet or more, the planning board may grant the rights referred to in subsection a. of this

section for such period of time, longer than two 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.

c. Whenever the planning board grants an extension of final approval pursuant to subsection a. or b. 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.

d. 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 a. or b. of this section.

L.1975,c.291,s.40; amended 1985, c.93; 1991,c.256,s.11.

NJ State Planning 1997 Municipal Land Use Law 45

40:55D-53. Guarantees required; surety; release

41. Guarantees required; surety; release. a. Before recording of final subdivision plats or as a condition of

final site plan approval or as a condition to the issuance of a zoning permit pursuant to subsection d. of

section 52 of P.L.1975, c.291 (C.40:55D-65), the approving authority may require and shall accept in

accordance with the standards adopted by ordinance for the purpose of assuring the installation and

maintenance of on-tract improvements:

(1) The furnishing of a performance guarantee in favor of the municipality in an amount not to exceed 120%

of the cost of installation, which cost shall be determined by the municipal engineer according to the method

of calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4), for improvements which the

approving authority may deem necessary or appropriate including: streets, grading, pavement, gutters, curbs,

sidewalks, street lighting, shade trees, surveyor's monuments, as shown on the final map and required by the

"Map Filing Law," P.L.1960, c.141 (C.46:23-9.9 et seq.), water mains, culverts, storm sewers, sanitary

sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control

devices, public improvements of open space and, in the case of site plans only, other on-site improvements

and landscaping.

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.

(2) Provision for a maintenance guarantee to be posted with the governing body for a period not to exceed

two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the

improvement, which cost shall be determined by the municipal engineer according to the method of

calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4). In the event that other governmental

agencies or public utilities automatically will own the utilities to be installed or the improvements are

covered by a performance or maintenance guarantee to another governmental agency, no performance or

maintenance guarantee, as the case may be, shall be required by the municipality for such utilities or

improvements.

b. 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 according to the method of calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4)

as of the time of the passage of the resolution.

c. 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.).

NJ State Planning 1997 Municipal Land Use Law 46

d. (1) 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

of the governing body in writing, by certified mail addressed in care of the municipal clerk, that the

municipal engineer prepare, in accordance with the itemized cost estimate prepared by the municipal

engineer and appended to the performance 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 of the request to the municipal engineer. The request shall indicate which improvements have been

completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the

municipal engineer shall inspect all improvements covered by 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.

(2) The list prepared by the municipal engineer shall state, in detail, with respect to each improvement

determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each

incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each

completed improvement determined to be unsatisfactory. The report prepared by the municipal engineer

shall identify each improvement determined to be complete and satisfactory together with a recommendation

as to the amount of reduction to be made in the performance 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 section.

e. (1) The governing body, by resolution, shall either approve the improvements determined to be complete

and satisfactory by the municipal engineer, or reject any or all of these improvements upon the establishment

in the resolution of cause for rejection, and shall approve and authorize the amount of reduction to be made

in the performance 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

subsection a. of this section. This resolution shall be adopted not later than 45 days after receipt of the list

and report prepared by the municipal engineer. Upon adoption of the resolution by the governing body, the

obligor shall be released from all liability pursuant to its performance guarantee, with respect to those

approved improvements, except for that portion adequately sufficient to secure completion or correction of

the improvements not yet approved; provided that 30% of the amount of the total performance guarantee

posted may be retained to ensure completion and acceptability of all improvements.

For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of

the performance guarantee attributable to each approved improvement shall be reduced by the total amount

for each such 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 section, including any

contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed

70 percent of the total amount of the performance guarantee, then the municipality may retain 30 percent of

the amount of the total performance guarantee to ensure completion and acceptability of all improvements,

as provided above.

(2) If the municipal engineer fails to send or provide the list and report as requested by the obligor pursuant

to subsection d. of this section 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 fees, may be awarded to the

prevailing party.

NJ State Planning 1997 Municipal Land Use Law 47

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 engineer's 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 and approval of a reduction in the performance guarantee for the

approvable 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.

(3) 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.

f. If any portion of the required improvements is rejected, the approving authority may require the obligor 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.

g. Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal

proceedings any determination of the governing body or the municipal engineer.

h. The obligor shall reimburse the municipality for all reasonable inspection fees paid to the municipal

engineer for the foregoing inspection of improvements; provided that the municipality may require of the

developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary

circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined

pursuant to section 15 of P.L.1991, c.256 (C.40:55D-53.4). For those developments for which the inspection

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 inspection fees. When the balance on deposit drops to

10% of the inspection 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

inspection fees. For those developments for which the inspection 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 inspection fees. When the balance on deposit drops to 10% of the inspection 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 inspection fees. The municipal

engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

i. In the event that final approval is by stages or sections of development pursuant to subsection a. of section

29 of P.L.1975, c.291 (C.40:55D-38), the provisions of this section shall be applied by stage or section.

j. 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 subsection a. of this section, to accept dedication for public use of streets or roads and

any other improvements made thereon 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.

L.1975,c.291,s.41; amended 1979, c.216, s.17; 1991, c.256, s.12; 1991, c.301; 1991, c.311; 1997, c.126.

NJ State Planning 1997 Municipal Land Use Law 48

40:55D-53.1. Interest on deposits with municipalities

Whenever an amount of money in excess of $5,000.00 shall be deposited by an applicant with a municipality

for professional services employed by the municipality to review applications for development, for

municipal inspection fees in accordance with subsection h. of section 41 of P.L. 1975, c. 291 (C. 40:55D-53)

or to satisfy the guarantee requirements of subsection a. of section 41 of P.L. 1975, c. 291 (C. 40:55D-53),

the money, until repaid or applied to the purposes for which it is deposited, including the applicant's portion

of the interest earned thereon, except as otherwise provided in this section, shall continue to be the property

of the applicant and shall be held in trust by the municipality. Money deposited shall be held in escrow. The

municipality receiving the money shall deposit it in a banking institution or savings and loan association in

this State insured by an agency of the federal government, or in any other fund or depository approved for

such deposits by the State, in an account bearing interest at the minimum rate currently paid by the

institution or depository on time or savings deposits. The municipality shall notify the applicant in writing of

the name and address of the institution or depository in which the deposit is made and the amount of the

deposit. The municipality shall not be required to refund an amount of interest paid on a deposit which does

not exceed $100.00 for the year. If the amount of interest exceeds $100.00, that entire amount shall belong

to the applicant and shall be refunded to him by the municipality annually or at the time the deposit is repaid

or applied to the purposes for which it was deposited, as the case may be; except that the municipality may

retain for administrative expenses a sum equivalent to no more than 33 1/3% of that entire amount, which

shall be in lieu of all other administrative and custodial expenses.

The provisions of this act shall apply only to that interest earned and paid on a deposit after the effective

date of this act.

L. 1985, c. 315, s. 1, eff. Aug. 28, 1985.

40:55D-53.2. Municipal payments to professionals for services rendered; determination

13. a. The chief financial officer of a municipality shall make all of the payments to professionals for

services rendered to the municipality or approving authority for review of applications for development,

review and preparation of documents, inspection of improvements or other purposes under the provisions of

P.L.1975, c.291 (C.40:55D-1 et seq.). Such fees or charges shall be based upon a schedule established by

resolution. The application review and inspection charges shall be limited only to professional charges for

review of applications, review and preparation of documents and inspections of developments under

construction and review by outside consultants when an application is of a nature beyond the scope of the

expertise of the professionals normally utilized by the municipality. The only costs that shall be added to any

such charges shall be actual out-of-pocket expenses of any such professionals or consultants including

normal and typical expenses incurred in processing applications and inspecting improvements. The

municipality or approving authority shall not bill the applicant, or charge any escrow account or deposit

authorized under subsection b. of this section, for any municipal clerical or administrative functions,

overhead expenses, meeting room charges, or any other municipal costs and expenses except as provided for

in this section, nor shall a municipal professional add any such charges to his bill. If the salary, staff support

and overhead for a municipal professional are provided by the municipality, the charge shall not exceed

200% of the sum of the products resulting from multiplying (1) the hourly base salary, which shall be

established annually by ordinance, of each of the professionals by (2) the number of hours spent by the

respective professional upon review of the application for development or inspection of the developer's

improvements, as the case may be. For other professionals the charge shall be at the same rate as all other

work of the same nature by the professional for the municipality when fees are not reimbursed or otherwise

imposed on applicants or developers.

NJ State Planning 1997 Municipal Land Use Law 49

b. If the municipality requires of the developer a deposit toward anticipated municipal expenses for these

professional services, the deposit shall be placed in an escrow account pursuant to section 1 of P.L.1985,

c.315 (C.40:55D-53.1). The amount of the deposit required shall be reasonable in regard to the scale and

complexity of the development. The amount of the initial deposit required shall be established by ordinance.

For review of applications for development proposing a subdivision, the amount of the deposit shall be

calculated based on the number of proposed lots. For review of applications for development proposing a

site plan, the amount of the deposit shall be based on one or more of the following: the area of the site to be

developed, the square footage of buildings to be constructed, or an additional factor for circulation-intensive

sites, such as those containing drive-through facilities. Deposits for inspection fees shall be established in

accordance with subsection h. of section 41 of P.L.1975, c.291 (C.40:55D-53).

c. Each payment charged to the deposit for review of applications, review and preparation of documents and

inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall

identify the personnel performing the service, and for each date the services performed, the hours spentto

one-quarter hour increments, the hourly rate and the expenses incurred. All professionals shall submit

vouchers to the chief financial officer of the municipality on a monthly basis in accordance with schedules

and procedures established by the chief financial officer of the municipality. If the services are provided by a

municipal employee, the municipal employee shall prepare and submit to the chief financial officer of the

municipality a statement containing the same information as required on a voucher, on a monthly basis. The

professional shall send an informational copy of all vouchers or statements submitted to the chief financial

officer of the municipality simultaneously to the applicant. The chief financial officer of the municipality

shall prepare and send to the applicant a statement which shall include an accounting of funds listing all

deposits, interest earnings, disbursements, and the cumulative balance of the escrow account. This

information shall be provided on a quarterly basis, if monthly charges are $1,000 or less, or on a monthly

basis if monthly charges exceed $1,000. If an escrow account or deposit contains insufficient funds to enable

the municipality or approving authority to perform required application reviews or improvement inspections,

the chief financial officer of the municipality shall provide the applicant with a notice of the insufficient

escrow or deposit balance. In order for work to continue on the development or the application , the

applicant shall within a reasonable time period post a deposit to the account in an amount to be agreed upon

by the municipality or approving authority and the applicant. In the interim, any required health and safety

inspections shall be made and charged back against the replenishment of funds.

d. The following close-out procedure shall apply to all deposits and escrow accounts established under the

provisions of P.L.1975, c.291 (C.40:55D-1 et seq.) and shall commence after the approving authority has

granted final approval and signed the subdivision plat or site plan, in the case of application review escrows

and deposits, or after the improvements have been approved as provided in section 41 of P.L.1975, c.291

(C.40:55D-53), in the case of improvement inspection escrows and deposits. The applicant shall send written

notice by certified mail to the chief financial officer of the municipality and the approving authority, and to

the relevant municipal professional, that the application or the improvements, as the case may be, are

completed. After receipt of such notice, the professional shall render a final bill to the chief financial officer

of the municipality within 30 days, and shall send a copy simultaneously to the applicant. The chief financial

officer of the municipality shall render a written final accounting to the applicant on the uses to which the

deposit was put within 45 days of receipt of the final bill. Any balances remaining in the deposit or escrow

account, including interest in accordance with section 1 of P.L.1985, c.315 (C.40:55D-53.1), shall be

refunded to the developer along with the final accounting.

NJ State Planning 1997 Municipal Land Use Law 50

e. All professional charges for review of an application for development, review and preparation of

documents or inspection of improvements shall be reasonable and necessary, given the status and progress

of the application or construction. Review fees shall be charged only in connection with an application for

development presently pending before the approving authority or upon review of compliance with

conditions of approval, or review of requests for modification or amendment made by the applicant. A

professional shall not review items which are subject to approval by any State governmental agency and not

under municipal jurisdiction except to the extent consultation with a State agency is necessary due to the

effect of State approvals in the subdivision or site plan. Inspection fees shall be charged only for actual work

shown on a subdivision or site plan or required by an approving resolution. Professionals inspecting

improvements under construction shall charge only for inspections that are reasonably necessary to check

the progress and quality of the work and such inspections shall be reasonably based on the approved

development plans and documents.

f. If the municipality retains a different professional or consultant in the place of the professional originally

responsible for development, application review, or inspection of improvements, the municipality or

approving authority shall be responsible for all time and expenses of the new professional to become

familiar with the application or the project, and the municipality or approving authority shall not bill the

applicant or charge the deposit or the escrow account for any such services.

L.1991,c.256,s.13; amended 1995,c.54,s.1.

40:55D-53.2a. Applicant notification to dispute charges; appeals; rules, regulations

3. a. An applicant shall notify in writing the governing body with copies to the chief financial officer, 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

attempt to remediate any disputed charges. 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 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). 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 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.

NJ State Planning 1997 Municipal Land Use Law 51

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.

L.1995,c.54,s.3.

40:55D-53.3. Maintenance, performance guarantees

14. A municipality shall not require that a maintenance guarantee required pursuant to section 41 of

P.L.1975, c.291 (C.40:55D-53) be in cash or that more than 10% of a performance guarantee pursuant to

that section be in cash. A developer may, however, provide at his option some or all of a maintenance

guarantee in cash, or more than 10% of a performance guarantee in cash.

L.1991,c.256,s.14.

40:55D-53.4. Municipal engineer to estimate cost of installation of improvements

15. 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 (C.52:27D-127).

L.1991,c.256,s.15; amended 1995,c.54,s.2.

40:55D-53.5. Performance of maintenance guarantee, acceptance

16. The approving authority shall, for the purposes of section 41 of P.L.1975, c.291 (C.40:55D-53), accept a

performance guarantee or maintenance guarantee which is an irrevocable letter of credit if it:

a. Constitutes an unconditional payment obligation of the issuer running solely to the municipality for an

express initial period of time in the amount determined pursuant to section 41 of P.L.1975, c.291 (C.40:55D-

53);

b. Is issued by a banking or savings institution authorized to do and doing business in this State;

c. Is for a period of time of at least one year; and

NJ State Planning 1997 Municipal Land Use Law 52

d. Permits the municipality to draw upon the letter of credit 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.

L.1991,c.256,s.16.

40:55D-53.6. Municipality to assume payment of cost of street lighting

17. If an approving authority includes as a condition of approval of an application for development pursuant

to P.L.1975, c.291 (C.40:55D-1 et seq.) the installation of street lighting on a dedicated public street

connected to a public utility, then upon notification in writing by the developer to the approving authority

and governing body of the municipality that (1) the street lighting on a dedicated public street has been

installed and accepted for service by the public utility and (2) that certificates of occupancy have been issued

for at least 50% of the dwelling units and 50% of the floor area of the nonresidential uses on the dedicated

public street or portion thereof indicated by section pursuant to section 29 of P.L.1975, c.291 (C.40:55D-38),

the municipality shall, within 30 days following receipt of the notification, make appropriate arrangements

with the public utility for, and assume the payment of, the costs of the street lighting on the dedicated public

street on a continuing basis. Compliance by the municipality with the provisions of this section shall not be

deemed to constitute acceptance of the street by the municipality.

L.1991,c.256,s.17.

40:55D-54. Recording of final approval of major subdivision; filing of all subdivision plats

42. Recording of final approval of major subdivision; filing of all subdivision plats. a. 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.

b. No subdivision plat shall be accepted for filing by the county recording officer until it has been approved

by the planning board as indicated on the instrument by the signature of the chairman and secretary of the

planning board or a certificate has been issued pursuant to sections 35, 38, 44, 48, 54 or 63 of P.L.1975,

c.291 (C.40:55D-47, 40:55D-50, 40:55D-56, 40:55D-61, 40:55D-67, 40:55D-76). The signatures of the

chairman and secretary of the planning board shall not be affixed until the developer has posted the

guarantees required pursuant to section 41 of P.L.1975, c.291 (C.40:55D-53). If the county recording officer

records any plat without such approval, such recording shall be deemed null and void, and upon request of

the municipality, the plat shall be expunged from the official records.

c. It shall be the duty of the county recording officer to notify the planning board in writing within seven

days of the filing of any plat, identifying such instrument by its title, date of filing, and official number.

L.1975,c.291,s.42; amended 1991,c.256,s.18.

40:55D-54.1. Notification to tax assessor of municipality

Upon the filing of a plat showing the subdivision or resubdivision of land, the county recording officer shall,

at the same time that notification is given to the planning board of the municipality pursuant to section 42 of

the act to which this act is a supplement, send a copy of such notification to the tax assessor of the

municipality in which such land is situated of the filing of said plat.

NJ State Planning 1997 Municipal Land Use Law 53

L.1977, c. 174, s. 1, eff. Aug. 16, 1977.

40:55D-55. Selling before approval; penalty; suits by municipalities

If, before final subdivision approval has been granted, any person transfers or sells or agrees to transfer or

sell, except pursuant to an agreement expressly conditioned on final subdivision approval, as owner or agent,

any land which forms a part of a subdivision for which municipal approval is required by ordinance pursuant

to this act, such person shall be subject to a penalty not to exceed $1,000.00, and each lot disposition so

made may be deemed a separate violation.

In addition to the foregoing, the municipality may institute and maintain a civil action:

a. For injunctive relief; and

b. To set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of

compliance has not been issued in accordance with section 44 of this act, but only if the municipality (1) has

a planning board and (2) has adopted by ordinance standards and procedures in accordance with section 29

of this act.

In any such action, the transferee, purchaser or grantee shall be entitled to a lien upon the portion of the land,

from which the subdivision was made that remains in the possession of the developer or his assigns or

successors, to secure the return of any deposits made or purchase price paid, and also, a reasonable search

fee, survey expense and title closing expense, if any. Any such action must be brought within 2 years after

the date of the recording of the instrument of transfer, sale or conveyance of said land or within 6 years, if

unrecorded.

L.1975, c. 291, s. 43, eff. Aug. 1, 1976.

40:55D-56. Certificates showing approval; contents

The prospective purchaser, prospective mortgagee, or any other person interested in any land which forms

part of a subdivision, or which formed part of such a subdivision 3 years preceding the effective date of this

act, may apply in writing to the administrative officer of the municipality, for the issuance of a certificate

certifying whether or not such subdivision has been approved by the planning board. Such application shall

contain a diagram showing the location and dimension of the land to be covered by the certificate and the

name of the owner thereof.

The administrative officer shall make and issue such certificate within 15 days after the receipt of such

written application and the fees therefor. Said officer shall keep a duplicate copy of each certificate,

consecutively numbered, including a statement of the fee charged, in a binder as a permanent record of his

office.

Each such certificate shall be designated a "certificate as to approval of subdivision of land," and shall

certify:

a. Whether there exists in said municipality a duly established planning board and whether there is an

ordinance controlling subdivision of land adopted under the authority of this act.

b. Whether the subdivision, as it relates to the land shown in said application, has been approved by the

planning board, and, if so, the date of such approval and any extensions and terms thereof, showing that

subdivision of which the lands are a part is a validly existing subdivision.

c. Whether such subdivision, if the same has not been approved, is statutorily exempt from the requirement

of approval as provided in this act.

The administrative officer shall be entitled to demand and receive for such certificate issued by him a

reasonable fee not in excess of those provided in R.S. 54:5-14 and 54:5-15. The fees so collected by such

official shall be paid by him to the municipality.

NJ State Planning 1997 Municipal Land Use Law 54

L.1975, c. 291, s. 44, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 18.

40:55D-57. Right of owner of land covered by certificate

Any person who shall acquire for a valuable consideration an interest in the lands covered by any such

certificate of approval of a subdivision in reliance upon the information therein contained shall hold such

interest free of any right, remedy or action which could be prosecuted or maintained by the municipality

pursuant to the provisions of section 43 of this act.

If the administrative officer designated to issue any such certificate fails to issue the same within 15 days

after receipt of an application and the fees therefor, any person acquiring an interest in the lands described in

such application shall hold such interest free of any right, remedy or action which could be prosecuted or

maintained by the municipality pursuant to section 43 of this act.

Any such application addressed to the clerk of the municipality shall be deemed to be addressed to the

proper designated officer and the municipality shall be bound thereby to the same extent as though the same

was addressed to the designated official.

L.1975, c. 291, s. 45, eff. Aug. 1, 1976.

40:55D-58. Condominiums and cooperative structures and uses

This act and all development regulations pursuant thereto shall be construed and applied with reference to

the nature and use of a condominium or cooperative structures or uses without regard to the form of

ownership. No development regulation shall establish any requirement concerning the use, location,

placement or construction of buildings or other improvements for condominiums or cooperative structures or

uses unless such requirement shall be equally applicable to all buildings and improvements of the same kind

not then or thereafter under the condominium or cooperative corporate form of ownership. No approval

pursuant to this act shall be required as a condition precedent to the recording of a condominium master

deed or the sale of any unit therein unless such approval shall also be required for the use or development of

the lands described in the master deed in the same manner had such lands not been under the condominium

form of ownership.

L.1975, c. 291, s. 46, eff. Aug. 1, 1976.

40:55D-60. Planning board review in lieu of board of adjustment

Whenever the proposed development requires approval pursuant to this act of a subdivision, site plan or

conditional use, but not a variance pursuant to subsection d. of section 57 of this act (C. 40:55D-70), the

planning board shall have the power to grant to the same extent and subject to the same restrictions as the

board of adjustment:

a. Variances pursuant to subsection 57 c. of this act;

b. Direction pursuant to section 25 of this act for issuance of a permit 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; and

c. Direction pursuant to section 27 of this act for issuance of a permit for a building or structure not related

to a street.

Whenever relief is requested pursuant to this section, notice of the hearing on the application for

development shall include reference to the request for a variance or direction for issuance of a permit, as the

case may be.

NJ State Planning 1997 Municipal Land Use Law 55

The developer may elect to submit a separate application requesting approval of the variance or direction of

the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan or

conditional use. The separate approval of the variance or direction of the issuance of a permit shall be

conditioned upon grant of all required subsequent approvals by the planning board. No such subsequent

approval shall be granted unless the 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.

L.1975, c. 291, s. 47, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 19; L.1984, c. 20, s. 10, eff. March

22, 1984.

40:55D-61. Time periods

Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request

for relief pursuant to section 47 of this act, the planning board shall grant or deny approval of the application

within 120 days after submission by a developer of a complete application to the administrative officer 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 or direction for issuance of a permit. The period for granting or denying and subsequent

approval shall be as otherwise provided in this act. Failure of the planning board 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 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.

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 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.

L.1975, c. 291, s. 48, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 20; L.1984, c. 20, s. 11, eff. March

22, 1984.

40:55D-62. Power to zone

49. Power to zone. a. The governing body may adopt or amend a zoning ordinance relating to the nature and

extent of the uses of land and of buildings and structures thereon. Such ordinance shall be adopted after the

planning board has adopted the land use plan element and the housing plan element of a master plan, and all

of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially

consistent with the land use plan element and the housing plan element of the master plan or designed to

effectuate such plan elements; provided that the governing body may adopt a zoning ordinance or

amendment or revision thereto which in whole or part is inconsistent with or not designed to effectuate the

land use plan element and the housing plan element, but only by affirmative vote of a majority of the full

authorized membership of the governing body, with the reasons of the governing body for so acting set forth

in a resolution and recorded in its minutes when adopting such a zoning ordinance; and provided further

that, notwithstanding anything aforesaid, the governing body may adopt an interim zoning ordinance

pursuant to subsection b. of section 77 of P.L.1975, c.291 (C.40:55D-90).

The zoning ordinance shall be drawn with reasonable consideration to the character of each district and its

peculiar suitability for particular uses and to encourage the most appropriate use of land. The regulations in

the zoning ordinance shall be uniform throughout each district for each class or kind of buildings or other

structure or uses of land, including planned unit development, planned unit residential development and

residential cluster, but the regulations in one district may differ from those in other districts.

NJ State Planning 1997 Municipal Land Use Law 56

b. No zoning ordinance and no amendment or revision to any zoning ordinance shall be submitted to or

adopted by initiative or referendum.

c. The zoning ordinance shall provide for the regulation of any airport safety zones delineated under the "Air

Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.), in conformity with standards

promulgated by the Commissioner of Transportation.

d. The zoning ordinance shall provide for the regulation of land adjacent to State highways in conformity

with the State highway access management code adopted by the Commissioner of Transportation under

section 3 of the "State Highway Access Management Act," P.L.1989, c.32 (C.27:7-91), for the regulation of

land with access to county roads and highways in conformity with any access management code adopted by

the county under R.S.27:16-1 and for the regulation of land with access to municipal streets and highways in

conformity with any municipal access management code adopted under R.S.40:67-1. This subsection shall

not be construed as requiring a zoning ordinance to establish minimum lot sizes or minimum frontage

requirements for lots adjacent to but restricted from access to a State highway.

L.1975,c.291,s.49; amended 1983,c.260,s.12; 1985,c.222,s.30; 1985,c.516,s.13; 1989,c.32,s.25;

1991,c.445,s.9.

40:55D-62.1. Notice of hearing on amendment to zoning ordinance

2. 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 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), 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.

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.

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.

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.

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.

L.1995,c.249,s.2.

NJ State Planning 1997 Municipal Land Use Law 57

40:55D-63. Notice and protest

50. Notice and Protest. Notice of the 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 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), shall be given prior to adoption in accordance with the

provisions of section 2 of P.L.1995, c.249 (C.40:55D-62.1). A protest against any proposed amendment or

revision of a zoning ordinance may be filed with the municipal clerk, signed by the owners of 20% or more

of the area either (1) of the lots or land included in such proposed change, or (2) of the lots or land extending

200 feet in all directions therefrom inclusive of street space, whether within or without the municipality.

Such amendment or revision shall not become effective following the filing of such protest except by the

favorable vote of two-thirds of all the members of the governing body of the municipality.

L.1975,c.291,s.50; amended 1991,c.256,s.19; 1995,c.249,s.1.

40:55D-64. Referral to planning board

Prior to the hearing on adoption of a zoning ordinance, or any amendments thereto, the governing body shall

refer any such proposed ordinance or amendment thereto to the planning board pursuant to subsection 17a.

of this act.

L.1975, c. 291, s. 51, eff. Aug. 1, 1976.

40:55D-65. Contents of zoning ordinance

52. A zoning ordinance may:

a. Limit and restrict buildings and structures to specified districts and regulate buildings and structures

according to their type and the nature and extent of their use, and regulate the nature and extent of the use of

land for trade, industry, residence, open space or other purposes.

b. Regulate the bulk, height, number of stories, orientation, and size of buildings and the other structures; the

percentage of lot or development area that may be occupied by structures; lot sizes and dimensions; and for

these purposes may specify floor area ratios and other ratios and regulatory techniques governing the

intensity of land use and the provision of adequate light and air, including, but not limited to the potential for

utilization of renewable energy sources.

c. Provide districts for planned developments; provided that an ordinance providing for approval of

subdivisions and site plans by the planning board has been adopted and incorporates therein the provisions

for such planned developments in a manner consistent with article 6 of this act. The zoning ordinance shall

establish standards governing the type and density, or intensity of land use, in a planned development. Said

standards shall take into account that the density, or intensity of land use, otherwise allowable may not be

appropriate for a planned development. The standards may vary the type and density, or intensity of land

use, otherwise applicable to the land within a planned development in consideration of the amount, location

and proposed use of open space; the location and physical characteristics of the site of the proposed planned

development; and the location, design and type of dwelling units and other uses. Such standards may

provide for the clustering of development between noncontiguous parcels and may, in order to encourage the

flexibility of density, intensity of land uses, design and type, authorize a deviation in various clusters from

the density, or intensity of use, established for an entire planned development. The standards and criteria by

which the design, bulk and location of buildings are to be evaluated shall be set forth in the zoning ordinance

and all standards and criteria for any feature of a planned development shall be set forth in such ordinance

with sufficient certainty to provide reasonable criteria by which specific proposals for planned development

can be evaluated.

NJ State Planning 1997 Municipal Land Use Law 58

d. Establish, for particular uses or classes of uses, reasonable standards of performance and standards for the

provision of adequate physical improvements including, but not limited to, off-street parking and loading

areas, marginal access roads and roadways, other circulation facilities and water, sewerage and drainage

facilities; provided that section 41 of this act shall apply to such improvements.

e. Designate and regulate areas subject to flooding (1) pursuant to P.L.1972, c.185 (C.58:16A-55 et seq.) or

(2) as otherwise necessary in the absence of appropriate flood hazard area designations pursuant to

P.L.1962, c.19 (C.58:16A-50 et seq.) or floodway regulations pursuant to P.L.1972, c.185 or minimum

standards for local flood fringe area regulation pursuant to P.L.1972, c.185.

f. Provide for conditional uses pursuant to section 54 of this act.

g. Provide for senior citizen community housing.

h. Require as a condition for any approval which is required pursuant to such ordinance and the provisions

of this chapter, that no taxes or assessments for local improvements are due or delinquent on the property for

which any application is made.

i. Provide for historic preservation pursuant to section 5 of P.L.1991 c.199 (C.40:55D-65.1).

L.1975,c.291,s.52; amended 1979,c.216,s.21; 1980,c.146,s.5; 1985,c.516,s.14; 1991,c.199,s.4;

1995,c.364,s.2.

40:55D-65.1. Zoning ordinance may designate, regulate historic sites, districts

5. A zoning ordinance may designate and regulate historic sites or historic districts and provide design

criteria and guidelines therefor. Designation and regulation pursuant to this section shall be in addition to

such designation and regulation as the zoning ordinance may otherwise require. Except as provided

hereunder, after July 1, 1994, all historic sites and historic districts designated in the zoning ordinance shall

be based on identifications in the historic preservation plan element of the master plan. Until July 1, 1994,

any such designation may be based on identifications in the historic preservation plan element, the land use

plan element or community facilities plan element of the master plan. The governing body may, at any time,

adopt, by affirmative vote of a majority of its authorized membership, a zoning ordinance designating one or

more historic sites or historic districts that are not based on identifications in the historic preservation plan

element, the land use plan element or community facilities plan element, provided the reasons for the action

of the governing body are set forth in a resolution and recorded in the minutes of the governing body.

L.1991,c.199,c.5.

40:55D-66. Miscellaneous provisions; model homes; public and private day schools; placement of

foster children in single family dwellings

a. For purposes of this act, model homes or sales offices within a subdivision and only during the period

necessary for the sale of new homes within such subdivision shall not be considered a business use.

b. No zoning ordinance governing the use of land by or for schools shall, by any of its provisions or by any

regulation adopted in accordance therewith, discriminate between public and private nonprofit day schools

of elementary or high school grade accredited by the State Department of Education.

c. No zoning ordinance shall, by any of its provisions or by any regulation adopted in accordance therewith,

discriminate between children who are members of families by reason of their relationship by blood,

marriage or adoption, and foster children placed with such families in a dwelling by the Division of Youth

and Family Services in the Department of Institutions and Agencies or a duly incorporated child care agency

and children placed pursuant to law in single family dwellings known as group homes. As used in this

section, the term "group home" means and includes any single family dwelling used in the placement of

children pursuant to law recognized as a group home by the Department of Institutions and Agencies in

accordance with rules and regulations adopted by the Commissioner of Institutions and Agencies provided,

however, that no group home shall contain more than 12 children.

NJ State Planning 1997 Municipal Land Use Law 59

L.1975, c. 291, s. 53, eff. Aug. 1, 1976.

40:55D-66.1. Community residences, permitted use in residential districts

1. Community residences for the developmentally disabled, community shelters for victims of domestic

violence and community residences for persons with head injuries shall be a permitted use in all residential

districts of a municipality, and the requirements therefor shall be the same as for single family dwelling units

located within such districts; provided, however, that, in the case of a community residence for the

developmentally disabled, community shelter for victims of domestic violence or community residence for

persons with head injuries housing more than six persons, excluding resident staff, a zoning ordinance may

require for the use or conversion to use of a dwelling unit to such a community residence or shelter, a

conditional use permit in accordance with section 54 of the act to which this act is a supplement (C.40:55D-

67). Any requirements imposed for the issuance of a conditional use permit shall be reasonably related to the

health, safety and welfare of the residents of the district; provided, however, that a municipality may deny

such a permit to any proposed community residence for the developmentally disabled, community shelter for

victims of domestic violence or community residence for persons with head injuries which would be located

within 1500 feet of an existing such residence or shelter; provided further, however, that a municipality may

deny the issuance of any additional such permits if the number of persons, other than resident staff, resident

at existing such community residences or community shelters within the municipality exceeds 50 persons, or

0.5% of the population of the municipality, whichever is greater.

L.1978,c.159,s.1; amended 1979,c.338,s.2; 1993,c.329,s.7.

40:55D-66.2. Definitions

2. As used in this act: a. "community residence for the developmentally disabled" means any community

residential facility licensed pursuant to P.L.1977, c.448 (C.30:11B-1 et seq.) providing food, shelter and

personal guidance, under such supervision as required, to not more than 15 developmentally disabled or

mentally ill persons, who require assistance, temporarily or permanently, in order to live in the community,

and shall include, but not be limited to: group homes, halfway houses, intermediate care facilities,

supervised apartment living arrangements, and hostels. Such a residence shall not be considered a health

care facility within the meaning of the "Health Care Facilities Planning Act," P.L.1971, c.136 (C.26:2H-1 et

al.). In the case of such a community residence housing mentally ill persons, such residence shall have been

approved for a purchase of service contract or an affiliation agreement pursuant to such procedures as shall

be established by regulation of the Division of Mental Health and Hospitals of the Department of Human

Services. As used in this act, "developmentally disabled person" means a person who is developmentally

disabled as defined in section 2 of P.L.1977, c.448 (C.30:11B-2), and "mentally ill person" means a person

who is afflicted with a mental illness as defined in R.S.30:4-23, but shall not include a person who has been

committed after having been found not guilty of a criminal offense by reason of insanity or having been

found unfit to be tried on a criminal charge.

b. "Community shelter for victims of domestic violence" means any shelter approved for a purchase of

service contract and certified pursuant to standards and procedures established by regulation of the

Department of Human Services pursuant to P.L.1979, c.337 (C.30:14-1 et seq.), providing food, shelter,

medical care, legal assistance, personal guidance, and other services to not more than 15 persons who have

been victims of domestic violence, including any children of such victims, who temporarily require shelter

and assistance in order to protect their physical or psychological welfare.

NJ State Planning 1997 Municipal Land Use Law 60

c. "Community residence for persons with head injuries" means a community residential facility licensed

pursuant to P.L.1977, c.448 (C.30:11B-1 et seq.) providing food, shelter and personal guidance, under such

supervision as required, to not more than 15 persons with head injuries, who require assistance, temporarily

or permanently, in order to live in the community, and shall include, but not be limited to: group homes,

halfway houses, supervised apartment living arrangements, and hostels. Such a residence shall not be

considered a health care facility within the meaning of the "Health Care Facilities Planning Act," P.L.1971,

c.136 (C.26:2H-1 et al.).

d. "Person with head injury" means a person who has sustained an injury, illness or traumatic changes to the

skull, the brain contents or its coverings which results in a temporary or permanent physiobiological

decrease of mental, cognitive, behavioral, social or physical functioning which causes partial or total

disability.

L.1978,c.159,s.2; amended 1979,c.338,s.3; 1993,c.329,s.8.

40:55D-66.3. Severability

If any provision of this act or the application thereof to any person or circumstance is found unconstitutional,

the remainder of this act and the application of such provisions to other persons or circumstances shall not

be affected thereby, and to this end the provisions of this act are severable.

L.1978, c. 159, s. 3, eff. Dec. 7, 1978.

40:55D-66.4. Home occupation for municipal zoning law purposes

Notwithstanding the provisions of any law to the contrary, family day care homes shall be deemed to be a

home occupation for purposes of municipal zoning laws and family day care homes shall not be subject to

more stringent restrictions than exist or apply to all other home occupations in the particular residential zone

in which the family day care home is located.

L. 1987, c. 305, s. 1.

40:55D-66.5. "Family day care home" defined

As used in this act:

"Family day care home" means any private residence approved by the Division of Youth and Family

Services or an organization with which the division contracts for family day care in which child care

services are regularly provided to no less than three and no more than five children for no less than 15 hours

per week. A child being cared for under the following circumstances is not included in the total number of

children receiving child care services:

a. The child being cared for is legally related to the provider; or

b. The child is being cared for as part of a cooperative agreement between parents for the care of their

children by one or more of the parents, where no payment for the care is being provided.

L. 1987, c. 305, s. 2.

40:55D-66.5a. Findings, declarations

1. The Legislature finds and declares that:

a. With over 50 percent of working-age women now in the workforce, the need for high quality child care is

of vital importance;

b. Not only does the availability of child care allow parents the peace of mind to pursue their careers and

lead active, productive, professional lives, but it is also a necessity given the high cost of living in this State

and the ever increasing need for families to bring home two incomes just to get by;

NJ State Planning 1997 Municipal Land Use Law 61

c. A significant number of people in this State, recognizing the tremendous need for quality child care, and

who, in some cases, are already staying home caring for their own children, are providing child care services

for a few additional children, thereby augmenting the supply of child care and providing a vital service that

might otherwise not be available elsewhere; and

d. Given the paucity of decent, affordable child care combined with the current labor shortage in this State, it

seems unreasonable to erect zoning barriers which effectively prevent the establishment of or, in some cases,

continuation of, these valuable and vitally necessary family day care homes.

e. It is therefore in the public interest and a valid public policy for this Legislature to eliminate those barriers

which currently exist which prevent the establishment, or continued operation of, family day care homes in

residential neighborhoods.

L.1991,c.278,s.1.

40:55D-66.5b. Family day care homes permitted use in residential districts; definitions

2. a. Family day care homes shall be a permitted use in all residential districts of a municipality. The

requirements for family day care homes shall be the same as for single family dwelling units located within

such residential districts. Any deed restriction that would prohibit the use of a single family dwelling unit as

a family day care home shall not be enforceable unless that restriction is necessary for the preservation of

the health, safety, and welfare of the other residents in the neighborhood. The burden of proof shall be on the

party seeking to enforce the deed restriction to demonstrate, on a case-by-case basis, that the restriction is

necessary for the preservation of the health, safety and welfare of the residents in the neighborhood who

were meant to benefit from the restriction.

b. In condominiums, cooperatives and horizontal property regimes that represent themselves as being

primarily for retirees or elderly persons, or which impose a minimum age limit tending to attract persons

who are nearing retirement age, deed restrictions or bylaws may prohibit family day care homes from being

a permitted use.

c. In condominiums, cooperatives and horizontal property regimes other than those permitted to prohibit

family day care homes from being a permitted use under subsection b. of this section, deed restrictions or

bylaws may prohibit family day care homes from being a permitted use; however, if such condominiums,

cooperatives, or horizontal property regimes prohibit such use, the burden of proof shall be on the

condominium association, cooperative association, or council of co-owners to demonstrate, on a case-bycase

basis, that the prohibition is reasonably related to the health, safety, and welfare of the residents. The

burden of proof also shall be on the condominium association, cooperative association, or council of coowners

to demonstrate, on a case-by-case basis, that any other restrictions imposed upon a family day care

home, including but not limited to noise restrictions and restrictions on the use of interior common areas, are

reasonably related to the health, safety and welfare of the residents.

d. For the purposes of this act:

"Family day care home" means the private residence of a family day care provider which is registered as a

family day care home pursuant to the "Family Day Care Provider Registration Act," P.L.1987, c.27

(C.30:5B-16 et seq.);

"Applicant" means a person who applies for a certificate of registration pursuant to the "Family Day Care

Provider Registration Act," P.L.1987, c.27 (C.30:5B-16 et seq.);

"Commissioner" means the Commissioner of Human Services;

"Condominium" means a condominium formed under the "Condominium Act," P.L.1969, c.257 (C.46:8B-1

et seq.);

"Cooperative" means a cooperative as defined under "The Cooperative Recording Act of New Jersey,"

P.L.1987, c.381 (C.46:8D-1 et seq.); and

NJ State Planning 1997 Municipal Land Use Law 62

"Horizontal property regime" means a horizontal property regime formed under the "Horizontal Property

Act," P.L.1963, c.168 (C.46:8A-1 et seq.).

L.1991,c.278,s.2; amended 1992,c.13,s.1.

40:55D-66.6. Child care centers located in nonresidential municipal districts; permitted

Child care centers for which, upon completion, a license is required from the Department of Human Services

pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.), shall be a permitted use in all nonresidential districts of a

municipality. The floor area occupied in any building or structure as a child care center shall be excluded in

calculating: (1) any parking requirement otherwise applicable to that number of units or amount of floor

space, as appropriate, under State or local laws or regulations adopted thereunder; and (2) the permitted

density allowable for that building or structure under any applicable municipal zoning ordinance.

L.1989, c.286, s.1.

40:55D-66.7. Child care center excluded in calculation of density of building

1. In considering an application for development approval for a nonresidential development that is to include

a child care center that is located on the business premises, is owned or operated by employers or landlords

for the benefit of their employees, their tenants' employees, or employees in the area surrounding the

development, and is required to be licensed by the Department of Human Services pursuant to P.L.1983,

c.492 (C.30:5B-1 et seq.), an approving authority may exclude the floor area to be occupied in any building

or structure by the child care center in calculating the density of that building or structure for the purposes of

determining whether or not the density is allowable under any applicable municipal zoning ordinance.

L.1992,c.81.

40:55D-66.8. Siting of structure, equipment for groundwater remedial action

3. a. The siting of a structure or equipment required for a groundwater remedial action approved by the

Department of Environmental Protection pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), shall be deemed to

be essential to the continuation of an existing structure or use of a property, including a nonconforming use,

or to the development of a property, as authorized in the zoning ordinance of a municipality. A groundwater

remedial action subject to this section, including any structure or equipment required in connection

therewith, shall, therefore, be deemed to be an accessory use or structure to any structure or use authorized

by the development regulations of a municipality; shall be a permitted use in all zoning or use districts of a

municipality; and shall not require a use variance pursuant to subsection d. of section 57 of P.L.1975, c.291

(C.40:55D-70).

b. A municipality may, by ordinance, adopt reasonable standards for the siting of a structure or equipment

required for a groundwater remedial action subject to subsection a. of this section. The standards may

include specification of the duration of time allowed for the removal from a site of all structures or

equipment used in the remedial action upon expiration of the term of the discharge permit or completion of

the remedial action, whichever shall be sooner. Nothing in this subsection shall be deemed to authorize a

municipality to require site plan review by a municipal agency for a groundwater remedial action, but an

ordinance establishing siting standards may provide penalties and may authorize the municipality to seek

injunctive relief for violations of the ordinance.

As used in this section, "groundwater remedial action" means the removal or abatement of pollutants in

groundwater, and includes de-watering activities performed in connection with the removal or replacement

of underground storage tanks, as defined in section 2 of P.L.1986, c.102 (C.58:10A-22), except that as used

herein underground storage tanks shall include:

(1) farm underground storage tanks of 1,100 gallons or less capacity used for storing motor fuel for

noncommercial purposes;

NJ State Planning 1997 Municipal Land Use Law 63

(2) underground storage tanks used to store heating oil for on-site consumption in a nonresidential building

with a capacity of 2,000 gallons or less; and

(3) underground storage tanks used to store heating oil for on-site consumption in a residential building.

L.1993,c.351,s.3.

40:55D-66.9. Variance for remedial action

4. If, for any of the reasons set forth in subsection c. of section 57 of P.L.1975, c.291 (C.40:55D-70), a

variance is required under that subsection c. for the siting of a structure or equipment to be used in a

groundwater remedial action subject to section 3 of P.L.1993, c.351 (C.40:55D-66.8), a variance for the

remedial action shall be deemed necessary to avoid exceptional and undue hardship on an owner, lessee or

developer of a property for which a variance application is made; however, a zoning ordinance may

authorize the zoning board of adjustment or planning board, as appropriate, to establish reasonable terms and

conditions for issuance of a subsection c. variance. The zoning board of adjustment or planning board, as

appropriate, shall review and take final action on an application for a subsection c. variance for a

groundwater corrective action at the next meeting of the zoning board of adjustment or planning board, as

appropriate, occurring not less than 20 days following the filing of an application therefor, unless the zoning

board of adjustment or planning board, as appropriate, determines that the application lacks information

indicated on a checklist adopted by ordinance and made available to the applicant, and the applicant has

been notified, in writing, of the specific deficiencies prior to expiration of the 20-day period.

L.1993,c.351,s.4.

40:55D-67. Conditional uses; site plan review

a. A zoning ordinance may provide for conditional uses to be granted by the planning board according to

definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness

to enable the developer to know their limit and extent. The planning board shall grant or deny an application

for a conditional use within 95 days of submission of a complete application by a developer to the

administrative officer, or within such further time as may be consented to by the applicant.

b. The review by the planning board of a conditional use shall include any required site plan review pursuant

to article 6 of this act. The time period for action by the planning board on conditional uses pursuant to

subsection a. of this section shall apply to such site plan review. Failure of the planning board 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 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.

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 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.

L.1975, c. 291, s. 54, eff. Aug. 1, 1976.

40:55D-68. Nonconforming structures and uses

Nonconforming structures and uses. Any nonconforming use or structure existing at the time of the passage

of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be

restored or repaired in the event of partial destruction thereof.

NJ State Planning 1997 Municipal Land Use Law 64

The prospective purchaser, prospective mortgagee, or any other person interested in any land upon which a

nonconforming use or structure exists may apply in writing for the issuance of a certificate certifying that the

use or structure existed before the adoption of the ordinance which rendered the use or structure

nonconforming. The applicant shall have the burden of proof. Application pursuant hereto may be made to

the administrative officer within one year of the adoption of the ordinance which rendered the use or

structure nonconforming or at any time to the board of adjustment. The administrative officer shall be

entitled to demand and receive for such certificate issued by him a reasonable fee not in excess of those

provided in R.S. 54:5-14 and R.S. 54:5-15. The fees collected by the official shall be paid by him to the

municipality. Denial by the administrative officer shall be appealable to the board of adjustment. Sections 59

through 62 of P.L. 1979, c. 291 (C. 40:55D-72 to C. 40:55D-75) shall apply to applications or appeals to the

board of adjustment.

L. 1975, c. 291, s. 55, eff. Aug. 1, 1976. Amended by L. 1985, c. 516, s. 15.

40:55D-68.1. Year-round operation

Any hotel, guest house, rooming house or boarding house which is situated in any municipality which

borders on the Atlantic ocean in a county of the fifth or sixth class shall be permitted to operate on a fullyear

basis notwithstanding section 55 of P.L.1975, c.291 (C.40:55D-68) or any municipal ordinance,

resolution, seasonal license, or other municipal rule or regulation to the contrary if it is demonstrated by

affidavit or certification that:

a. a certificate of inspection has been issued for the hotel or guest house under the provisions of P.L.1967,

c.76 (C.55:13A-1 et seq.) or, in the case of a rooming house or boarding house, that a license has been issued

under P.L.1979, c.496 (C.55:13B-1 et al.); and

b. a hotel or guest house in the municipality which has obtained a certificate of inspection pursuant to

P.L.1967, c.76 (C.55:13A-1 et seq.) or rooming house or boarding house in the municipality which is

licensed under P.L.1979, c.496 (C.55:13B-1 et al.) is not prohibited from operating on a full-year basis on

February 9, 1989 or on any other day following February 9, 1989.

L.1989, c.67, s.1.

40:55D-68.2 Determination of eligibility

The owner of any hotel, guest house, rooming house or boarding house who proposes to increase its

operation to a full-year basis and who can demonstrate that a hotel, guest house, rooming house or boarding

house in the municipality is not prohibited from operating on a full-year basis as provided under section 1 of

this act shall file copies of that information with the Commissioner of Community Affairs in accordance

with the requirements set forth in section 1 of this act and provide copies of that information to the clerks of

the municipality and county in which the hotel, guest house, rooming house or boarding house is situated.

The commissioner shall review that information submitted by the hotel, guest house, rooming house or

boarding house owner and, within 30 days of receiving the information submitted, provide a determination

of whether or not the hotel, guest house, rooming house or boarding house meets the requirements of section

1 of this act. If the commissioner does not provide a determination within the 30-day period, the hotel, guest

house, rooming house or boarding house owner may commence the operation of the hotel, guest house,

rooming house or boarding house on a full-year basis.

L.1989, c.67, s.2.

40:55D-68.3. Penalty for violation

Any person who knowingly files false information under this act shall be liable to a civil penalty not to

exceed $1,000 for each filing. Any penalty imposed under this section may be recovered with costs in a

summary proceeding pursuant to "the penalty enforcement law," N.J.S.2A:58-1 et seq.

L.1989, c.67, s.3.

NJ State Planning 1997 Municipal Land Use Law 65

40:55D-69. Zoning board of adjustment

Zoning board of adjustment. Upon the adoption of a zoning ordinance, the governing body shall create, by

ordinance, a zoning board of adjustment unless the municipality is eligible for, and exercises, the option

provided by subsection c. of section 16 of P.L. 1975, c. 291 (C. 40:55D-25). A zoning board of adjustment

shall consist of seven regular members and may have not more than two alternate members.

Notwithstanding the provisions of any other law or charter heretofore adopted, such ordinance shall provide

the method of appointment of all such members. Alternate members shall be designated at the time of

appointment by the authority appointing them as "Alternate No. 1" and "Alternate No. 2." The terms of the

members first appointed under this act shall be so determined that to the greatest practicable extent, the

expiration of such terms shall be distributed, in the case of regular members, evenly over the first four years

after their appointment, and in the case of alternate members, evenly over the first two years after their

appointment; provided that the initial term of no regular members shall exceed four years and that the initial

term of no alternate member shall exceed two years. Thereafter, the term of each regular member shall be

four years, and the term of each alternate member shall be two years. No member may hold any elective

office or position under the municipality. No member of the board of adjustment shall be permitted to act on

any matter in which he has, either directly or indirectly, any personal or financial interest. A member may,

after public hearing if he requests it, be removed by the governing body for cause. A vacancy occurring

otherwise than by expiration of term shall be filled for the unexpired term only.

The board of adjustment shall elect a chairman and vice-chairman from its members and select a secretary,

who may or may not be a member of the board of adjustment or a municipal employee.

Alternate members may participate in discussions of the proceedings but may not vote except in the absence

or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote

instead of an alternate member. In the event that a choice must be made as to which alternate member is to

vote, Alternate No. 1 shall vote.

L. 1975, c. 291, s. 56, eff. Aug. 1, 1976. Amended by L. 1978, c. 37, s. 2, eff. June 19, 1978; L. 1979, c. 216,

s. 22; L. 1985, c. 516, s. 27.

40:55D-69.1. Members of planning board may serve temporarily on the board of adjustment

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. 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.

L.1991,c.256,s.20.

40:55D-70 Powers

57. Powers. The board of adjustment shall have the power to:

a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement,

decision or refusal made by an administrative officer based on or made in the enforcement of the zoning

ordinance;

b. Hear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other

special questions upon which such board is authorized to pass by any zoning or official map ordinance, in

accordance with this act;

NJ State Planning 1997 Municipal Land Use Law 66

c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property,

or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific

piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific

piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant

to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and

undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such

property, a variance from such strict application of such regulation so as to relieve such difficulties or

hardship; (2) where in an application or appeal relating to a specific piece of property the purposes of this act

would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation

would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to

article 8 of this act; provided, however, that the fact that a proposed use is an inherently beneficial use shall

not be dispositive of a decision on a variance under this subsection and provided that no variance from those

departures enumerated in subsection d. of this section shall be granted under this subsection; and provided

further that the proposed development does not require approval by the planning board of a subdivision, site

plan or conditional use, in conjunction with which the planning board has power to review a request for a

variance pursuant to subsection a. of section 47 of this act; and

d. In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to

article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or

principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard

pursuant to section 54 of P.L.1975, c.291 (C.40:55D-67) pertaining solely to a conditional use, (4) an

increase in the permitted floor area ratio as defined in section 3.1. of P.L.1975, c.291 (C.40:55D-4), (5) an

increase in the permitted density as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), except as

applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or

lots either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal

structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal

structure. A variance under this subsection shall be granted only by affirmative vote of at least five

members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a

regional board, pursuant to article 10 of this act.

If an application development requests one or more variances but not a variance for a purpose enumerated in

subsection d. of this section, the decision on the requested variance or variances shall be rendered under

subsection c. of this section.

No variance or other relief may be granted under the terms of this section, including a variance or other

relief involving an inherently beneficial use, without a showing that such variance or other relief can be

granted without substantial detriment to the public good and will not substantially impair the intent and the

purpose of the zone plan and zoning ordinance. In respect to any airport safety zones delineated under the

"Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.), no variance or other relief may be

granted under the terms of this section, permitting the creation or establishment of a nonconforming use

which would be prohibited under standards promulgated pursuant to that act, except upon issuance of a

permit by the Commissioner of Transportation. 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.

L.1975,c.291,s.57; amended 1979, c.216, s.23; 1983, c.260, s.13; 1984, c.20, s.12; 1991, c.256, s.21; 1991,

c.445, s.10; 1997, c.145.

NJ State Planning 1997 Municipal Land Use Law 67

40:55D-70.1. Annual report

The board of adjustment shall, at least once a year, review its decisions on applications and appeals for

variances and prepare and adopt by resolution a report on its findings on zoning ordinance provisions which

were the subject of variance requests and its recommendations for zoning ordinance amendment or revision,

if any. The board of adjustment shall send copies of the report and resolution to the governing body and

planning board.

L. 1985, c. 516, s. 16.

40:55D-70.2. Board of adjustment, determination; reasons

6. If, in the case of an appeal made pursuant to subsection a. of section 57 of P.L.1975, c.291 (C.40:55D-70),

the board of adjustment determines there is an error in any order, requirement, decision or refusal made by

the administrative officer pursuant to a report submitted by the historic preservation commission or planning

board in accordance with section 25 of P.L.1985, c.216 (C.40:55D-111), the board of adjustment shall

include the reasons for its determination in the findings of its decision thereon.

L.1991,c.199,s.6.

40:55D-71. Expenses and costs

a. The governing body shall make provision in its budget and appropriate funds for the expenses of the board

of adjustment.

b. The board of adjustment may employ, or contract for, and fix the compensation of legal counsel, other

than the municipal attorney, and experts and other staff and services as it shall deem necessary, not

exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its use.

L.1975, c. 291, s. 58, eff. Aug. 1, 1976.

40:55D-72. Appeals and applications to board of adjustment

a. Appeals to the board of adjustment may be taken by any interested party affected by any decision of an

administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or

official map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from

whom the appeal is taken specifying the grounds of such appeal. The officer from whom the appeal is taken

shall immediately transmit to the board all the papers constituting the record upon which the action appealed

from was taken.

b. A developer may file an application for development with the board of adjustment for action under any of

its powers without prior application to an administrative officer.

L.1975, c. 291, s. 59, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 24.

40:55D-72.1. Continuation of application

Any application for development submitted to the board of adjustment pursuant to lawful authority before

the effective date of an ordinance pursuant to subsection c. of section 16 of P.L. 1975, c. 291 (C. 40:55D-25)

may be continued at the option of the applicant, and the board of adjustment shall have every power which it

possessed before the effective date of the ordinance in regard to the application.

L. 1985, c. 516, s. 9.

40:55D-73. Time for decision

a. The board of adjustment shall render a decision not later than 120 days after the date (1) an appeal is taken

from the decision of an administrative officer or (2) the submission of a complete application for

development to the board of adjustment pursuant to section 59b. of this act.

NJ State Planning 1997 Municipal Land Use Law 68

b. Failure of the board to render a decision within such 120-day period or within such further time as may be

consented to by the applicant, shall constitute a decision favorable to the applicant.

L.1975, c. 291, s. 60, eff. Aug. 1, 1976.

40:55D-74. Modification on appeal

The board of adjustment may reverse or affirm, wholly or in part, or may modify the action, order,

requirement, decision, interpretation or determination appealed from and to that end have all the powers of

the administrative officer from whom the appeal is taken.

L.1975, c. 291, s. 61, eff. Aug. 1, 1976.

40:55D-75. Stay of proceedings by appeal; exception

An appeal to the board of adjustment shall stay all proceedings in furtherance of the action in respect to

which the decision appealed from was made unless the officer from whose action the appeal is taken

certifies to the board of adjustment, after the notice of appeal shall have been filed with him, that by reason

of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such

case, proceedings shall not be stayed other than by an order of the Superior Court upon notice to the officer

from whom the appeal is taken and on due cause shown.

L.1975, c. 291, s. 62, eff. Aug. 1, 1976.

40:55D-76. Other powers

a. Sections 59 through 62 of this article shall apply to the power of the board of adjustment to:

(1) Direct issuance of a permit pursuant to section 25 of this act 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; or

(2) Direct issuance of a permit pursuant to section 27 of this act 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 or

conditional use approval pursuant to section 54 of this act, whenever the proposed development requires

approval by the board of adjustment of a variance pursuant to subsection d. of section 57 of this act (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 shall not be required.

NJ State Planning 1997 Municipal Land Use Law 69

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.

L.1975, c. 291, s. 63, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 25; L.1984, c. 20, s. 13, eff. March

22, 1984.

40:55D-77. Generally

The governing bodies of two or more municipalities, independently or with the board or boards of chosen

freeholders of any county or counties in which such municipalities are located or of any adjoining county or

counties or the governing body of any municipality and the board of chosen freeholders in which such

municipality is located, or the boards of chosen freeholders of any two or more adjoining counties, may, by

substantially similar ordinances or resolutions, as the case may be, duly adopted by each of such governing

bodies within 6 calendar months after the adoption of the first such ordinance or resolution after notice and

hearing as herein required, enter into a joint agreement providing for the joint administration of any or all of

the powers conferred upon each of the municipalities or counties pursuant to this act. Such ordinance may

also provide for the establishment and appointment of a regional planning board, a regional board of

adjustment, or a joint building official, joint zoning officer or other officials responsible for performance of

administrative duties in connection with any power exercised pursuant to this act.

L.1975, c. 291, s. 64, eff. Aug. 1, 1976.

40:55D-78. Terms of joint agreement

The ordinance shall, subject to this article, set forth the specific duties to be exercised jointly; the

composition, membership and manner of appointment of any regional board including the representation of

each municipality or county; the qualifications and manner or appointment of any joint building official,

joint zoning officer or other joint administrative officer; the term of office, the manner of financing, the

expenses of such joint exercise of powers, the share of financing to be borne by each county and

municipality joining therein, the duration of such agreement and the manner in which such agreement may

be terminated or extended.

L.1975, c. 291, s. 65, eff. Aug. 1, 1976.

NJ State Planning 1997 Municipal Land Use Law 70

40:55D-79. Membership of regional boards

Every joint agreement creating a regional board under this article shall provide for a representative member

on such board for each constituent municipality or county and may provide for additional representative

members for any such constituent municipality or county. The representative member or members on a

regional board for a constituent municipality shall be appointed by the mayor.

Any such member, after a public hearing if he requests one, may be removed for cause by the governing

body of such constituent municipality. The representative member or members of a regional board for a

constituent county shall be appointed by the board of chosen freeholders of such county. Any such member,

after public hearing if he requests one, may be removed for cause by the board of chosen freeholders of such

constituent county. In addition to such members, any regional planning board may adopt a resolution

providing that the Commissioner of the Department of Environmental Protection appoint as a member of the

regional planning board a representative of that department's Division of Parks and Forestry and an

additional member who shall be a resident of the area served by the regional board but who shall not hold

any public office or position excepting an appointive membership on a municipal or other planning board.

Within 30 days of the adoption of such resolution the commissioner shall make the appointments as

requested.

L.1975, c. 291, s. 66, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 26.

40:55D-80. Organization of regional boards; rules and procedures

Each regional board shall elect a chairman and a vice chairman from among its members, with a term of 1

year and eligibility for reelection, and select a secretary, who may or may not be a member or employee of

the board, and may create and fill such other offices as it may determine.

Each regional board shall adopt rules for the transaction of its business and keep a record of its resolutions,

transactions, findings and determinations, which record shall be a public record. Each regional board shall

be subject to the provisions of article 1 of this act relating to rules of procedures, meetings, hearings and

notices.

L.1975, c. 291, s. 67, eff. Aug. 1, 1976.

40:55D-81. Expenses; staff and consultants

The regional board or agency may employ, or contract for and fix the compensation of legal counsel, other

than an attorney for a constituent municipality or county, and experts and other staff and services, as it may

deem necessary, not exceeding, exclusive of gifts or grants, the amounts agreed upon and appropriated for

its use.

L.1975, c. 291, s. 68, eff. Aug. 1, 1976.

40:55D-82. Sharing of costs and expenses

The apportionment of costs and expenses under any joint agreement may be based upon apportionment

valuations determined under R.S. 54:4-49, or upon population, budgets and such other factor or factors, or

any combination thereof as provided in the agreement.

L.1975, c. 291, s. 69, eff. Aug. 1, 1976.

40:55D-83. Termination of agreement

Termination of a joint agreement pursuant to section 65 of this act shall not be made effective earlier than

June 30 next succeeding the expiration of 12 full calendar months following the decision to terminate;

provided that such termination may occur at an earlier date if the parties to the joint agreement unanimously

agree to such earlier date on or after the date of the decision to terminate as provided by the joint agreement.

L.1975, c. 291, s. 70, eff. Aug. 1, 1976.

NJ State Planning 1997 Municipal Land Use Law 71

40:55D-84. Regional planning board; powers

A regional planning board shall prepare a master plan for the physical, economic and social development of

the region, as created pursuant to the agreement, with elements similar to those mentioned in section 19, and

may make such additional surveys and studies as may be necessary to carry out its duties. The governing

body of any constituent municipality, by ordinance, or the board of chosen freeholders of any constituent

county, by resolution, may delegate to the regional planning board, any or all of the powers and duties of a

municipal planning board, in the case of a municipality, and, in the case of a county, any or all or the powers

and duties of a county planning board.

Notwithstanding any other provision of this act, no application for development shall be required to be

reviewed and approved by both a regional planning board and the planning board of a constituent

municipality.

L.1975, c. 291, s. 71, eff. Aug. 1, 1976.

40:55D-85. Regional board of adjustment

A regional board of adjustment shall consist of at least seven members. Each member shall be appointed for

a term of 4 years, except that of the first members to be appointed, the term of at least one member shall

expire at the end of every year. A regional board of adjustment shall have all the powers of a municipal

board of adjustment of each of the constituent municipalities and, unless otherwise specified herein, shall be

subject to the provisions of this act relating to municipal boards of adjustment. Except for determination of

matters pending before them at the time of creation of a regional board of adjustment, the jurisdiction of all

municipal boards of adjustment in the constituent municipalities shall be terminated by the regional board.

L.1975, c. 291, s. 72, eff. Aug. 1, 1976.

40:55D-85.1. Appeal to municipality of final decision on application for development by regional

planning board or zoning board of adjustment

a. In the case of any final decision of a regional planning board or regional zoning board of adjustment

approving an application for development, the governing body of the municipality in which the land is

situated which is the subject of the application for development may hear and decide an appeal by any

interested party of this approval if the application for development is of a class of applications for

development specified by ordinance as so subject to appeal. The appeal shall be made within 10 days of the

date of publication of the final decision pursuant to subsection i. of section 6 of P.L. 1975, c. 291 (C.

40:55D-10). The appeal to the governing body shall be made by serving the municipal clerk in person or by

certified mail with a notice of appeal specifying the grounds thereof and the name and address of the

appellant and name and address of his attorney, if represented. The appeal shall be decided by the governing

body only upon the record established before the regional board.

b. Notice of the meeting to review the record below shall be given by the governing body by personal

service or certified mail to the appellant, to those entitled to notice of a decision pursuant to subsection h. of

section 6 of P.L. 1975, c. 291 (C. 40:55D-10) and to the board from which the appeal is taken, at least 10

days prior to the date of the meeting. The parties may submit oral and written argument on the record at the

meeting, and the governing body shall provide for verbatim recording and transcripts of the meeting

pursuant to subsection f. of section 6 of P.L. 1975, c. 291 (C. 40:55D-10.)

c. The appellant shall, (1) within five days of service of the notice of the appeal pursuant to subsection a.

hereof, arrange for a transcript pursuant to subsection f. of section 6 of P.L. 1975, c. 291 (C. 40:55D-10) for

use by the governing body and pay a deposit of $50.00 or the estimated cost of such transcription, whichever

is less, or (2) within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to

the municipal clerk; otherwise, the appeal may be dismissed for failure to prosecute.

NJ State Planning 1997 Municipal Land Use Law 72

The governing body shall conclude a review of the record not later than 95 days from the date of publication

of notice of the decision below pursuant to subsection i. of section 6 of P.L. 1975, c. 291 (C. 40:55D-10)

unless the applicant consents in writing to an extension of the period. Failure of the governing body to hold a

hearing and conclude a review of the record below and to render a decision within the specified period shall

constitute a decision affirming the action of the board.

d. The governing body may reverse, remand, or affirm with or without the imposition of conditions the final

decision of the regional board.

e. The affirmative vote of a majority of the full authorized membership of the governing body shall be

necessary to reverse, remand, or affirm with or without conditions any final action of the regional board.

f. An appeal to the governing body shall stay all proceedings in furtherance of the action in respect to which

the decision appealed from was made unless the board from whose action the appeal is taken certifies to the

governing body, after the notice of appeal shall have been filed with the board, that by reason of acts stated

in the certificate a stay would, in its opinion, cause imminent peril to life or property. In such case,

proceedings shall not be stayed other than by an order of the Superior Court on application upon notice to

the board from whom the appeal is taken and on good cause shown.

g. The governing body shall mail a copy of the decision to the appellant or if represented then to his

attorney, without separate charge, and for a reasonable charge to any interested party who has requested it,

not later than 10 days after the date of the decision. A brief notice of the decision shall be published in the

official newspaper of the municipality, if there is one, or in a newspaper of general circulation in the

municipality. The publication shall be arranged by the applicant unless a particular municipal officer is so

designated by ordinance; but nothing contained herein shall be construed as preventing the applicant from

arranging the publication if he so desires. The governing body may make a reasonable charge for its

publication. The period of time in which an appeal to a court of competent jurisdiction may be made shall

run from the first publication, whether arranged by the municipality or the applicant.

h. Nothing in this act shall be construed to restrict the right of any party to obtain a review by any court of

competent jurisdiction according to law.

L. 1985, c. 516, s. 17.

40:55D-86. Appointment of joint building officials, zoning officers and planning administrative

officers

The governing bodies of two or more constituent municipalities may provide by agreement, pursuant to

procedures set forth herein, for the appointment of a joint building official, zoning officer, planning

administrative officer or any thereof, and any other personnel necessary for the enforcement of the

provisions of this act.

L.1975, c. 291, s. 73, eff. Aug. 1, 1976.

40:55D-87. Joint administrative functions

The building official, zoning office and planning administration functions, or any thereof, or a joint office

shall be exercised in the same manner, to the same extent and with the same obligation to attend and report

to the governing bodies, boards, communities and officials of each of the several municipalities as though

such functions were exercised in each municipality separately, and all records for each of the municipalities

shall be maintained separately and shall be available for public inspection pursuant to law.

Except as otherwise provided by joint agreement, any person or persons who may hereafter be appointed as

a joint building official, zoning officer or planning administrative officer shall serve at the pleasure of the

regional planning board.

L.1975, c. 291, s. 74, eff. Aug. 1, 1976.

NJ State Planning 1997 Municipal Land Use Law 73

40:55D-88. Delegation to county, regional and interstate bodies

The governing body of any municipality may, by ordinance pursuant to a written agreement, provide for the

joint administration of any or all of the powers conferred upon the municipality by this act with a county,

regional or interstate body authorized to act in the region of which the municipality is part. The ordinance

shall set forth the membership of the joint body, the specific administrative duties to be exercised, in the

manner of financing, the share of financing to be borne by the bodies involved, the duration of the

agreement and the manner in which the agreement may be terminated or extended.

L.1975, c. 291, s. 75, eff. Aug. 1, 1976.

40:55D-89. Periodic examination

76. Periodic examination. The governing body shall, at least every six years, provide for a general

reexamination of its master plan and development regulations by the planning board, which shall prepare

and adopt by resolution a report on the findings of such reexamination, a copy of which report and resolution

shall be sent to the county planning board and the municipal clerk of each adjoining municipality. The first

such reexamination shall have been completed by August 1, 1982. The next reexamination shall be

completed by August 1, 1988. Thereafter, a reexamination shall be completed at least once every six years

from the previous reexamination.

The reexamination report shall state:

a. The major problems and objectives relating to land development in the municipality at the time of the

adoption of the last reexamination report.

b. The extent to which such problems and objectives have been reduced or have increased subsequent to

such date.

c. The extent to which there have been significant changes in the assumptions, policies, and objectives

forming the basis for the master plan or development regulations as last revised, with particular regard to the

density and distribution of population and land uses, housing conditions, circulation, conservation of natural

resources, energy conservation, collection, disposition, and recycling of designated recyclable materials, and

changes in State, county and municipal policies and objectives.

d. The specific changes recommended for the master plan or development regulations, if any, including

underlying objectives, policies and standards, or whether a new plan or regulations should be prepared.

e. The recommendations of the planning board concerning the incorporation of redevelopment plans adopted

pursuant to the "Local Redevelopment and Housing Law," P.L.1992, c.79 (C.40A:12A-1 et al.) into the land

use plan element of the municipal master plan, and recommended changes, if any, in the local development

regulations necessary to effectuate the redevelopment plans of the municipality.

L.1975,c.291,s.76; amended 1980,c.146,s.6; 1985,c.516,s.18; 1987,c.102,s.29; 1992,c.79,s.50.

40:55D-89.1. Rebuttable presumption

The absence of the adoption by the planning board of a reexamination report pursuant to section 76 of P.L.

1975, c. 291 (C. 40:55D-89) shall constitute a rebuttable presumption that the municipal development

regulations are no longer reasonable.

L. 1985, c. 516, s. 19.

40:55D-90. Moratoriums; interim zoning

Moratoriums; interim zoning. a. The prohibition of development in order to prepare a master plan and

development regulations is prohibited.

NJ State Planning 1997 Municipal Land Use Law 74

b. No moratoria on applications for development or interim zoning ordinances shall be permitted except in

cases where the municipality demonstrates on the basis of a written opinion by a qualified health

professional that a clear imminent danger to the health of the inhabitants of the municipality exists, and in no

case shall the moratorium or interim ordinance exceed a six-month term.

L. 1975, c. 291, s. 77, eff. Aug. 1, 1976. Amended by L. 1979, c. 7, s. 1, eff. Jan. 30, 1979; L. 1985, c. 516,

s. 20.

40:55D-91. Severability of provisions

If the provisions of any article, section, subsection, paragraph, subdivision or clause or this act shall be

judged invalid by a court of competent jurisdiction, such order or judgment shall not affect or invalidate the

remainder of any article, section, subsection, paragraph, subdivision or clause of this act and, to this end, the

provisions of each article, section, subsection, paragraph, subdivision or clause of this act are hereby

declared to be severable.

L.1975, c. 291, s. 78, eff. Aug. 1, 1976.

40:55D-92. Construction

This act being necessary for the welfare of the State and its inhabitants shall be considered liberally to effect

the purposes thereof.

L.1975, c. 291, s. 79, eff. Aug. 1, 1976.

40:55D-93. Preparation; storm water control ordinances to implement; date of completion;

reexamination

Every municipality in the State shall prepare a storm water management plan and a storm water control

ordinance or ordinances to implement said plan. Such a storm water management plan shall be completed

within 1 year from the date of promulgation of comprehensive storm water management regulations by the

Commissioner of the Department of Environmental Protection, or by the next reexamination of the master

plan required pursuant to section 76 of P.L.1975, c. 291 (C. 40:55D-89), whichever shall be later, provided

that a grant for the preparation of the plan has been made available pursuant to section 6 hereof. The plan

shall be reexamined at each subsequent scheduled reexamination of the master plan pursuant thereto. Such a

storm water control ordinance or ordinances shall be adopted within 1 year of the completion of the storm

water management plan and shall be revised thereafter as needed.

L.1981, c. 32, s. 1, eff. Feb. 12, 1981.

40:55D-94. Integral part of master plan; coordination with soil conservation district and other storm

water management plans

Such a storm water management plan shall be an integral part of any master plan prepared by that

municipality pursuant to section 19 of P.L.1975, c. 291 (C. 40:55D-28). Each municipality shall coordinate

such plan with the appropriate soil conservation district established pursuant to chapter 24 of Title 4 of the

Revised Statutes and with any storm water management plans prepared by any other municipality or any

county, areawide agency or the State relating to the river basins located in that municipality.

L.1981, c. 32, s. 2, eff. Feb. 12, 1981.

NJ State Planning 1997 Municipal Land Use Law 75

40:55D-95. Storm water management plan, ordinance; requirements

3. A storm water management plan and a storm water management ordinance or ordinances shall conform to

all relevant federal and State statutes, rules and regulations concerning storm water management or flood

control and shall be designed: a. to reduce flood damage, including damage to life and property; b. to

minimize storm water runoff from any new land development where such runoff will increase flood damage;

c. to reduce soil erosion from any development or construction project; d. to assure the adequacy of existing

and proposed culverts and bridges; e. to induce water recharge into the ground where practical; f. to prevent,

to the greatest extent feasible, an increase in nonpoint pollution; g. to maintain the integrity of stream

channels for their biological functions, as well as for drainage; and h. to minimize public safety hazards at

any storm water detention facilities constructed as part of a subdivision or pursuant to a site plan. A storm

water management plan shall also include such structural changes and such additional nonstructural

measures and practices as may be necessary to manage storm water. For purposes of this act "nonpoint

pollution" means pollution from any source other than from any discernible, confined and discrete

conveyance, and shall include, but not be limited to, pollutants from agricultural, silvicultural, mining,

construction, subsurface disposal and urban runoff sources.

L.1981,c.32,s.3; amended 1991,c.194,s.1.

40:55D-95.1. Rules, regulations

5. The Commissioner of Environmental Protection, pursuant to the "Administrative Procedure Act,"

P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt regulations to protect the public safety with respect to

storm water detention facilities, including those aspects of design and operation of storm water detention

facilities that may constitute a threat to the public safety. In adopting the rules and regulations, the

commissioner shall, to the maximum extent feasible:

a. Promote site-specific solutions to public safety hazards at storm water detention facilities in keeping with

generally accepted storm water management and engineering principles;

b. Deter the general public, especially children, from entering areas where storm water detention facilities

are located;

c. Provide guidelines for designing escape aids for individuals who may become trapped in a storm water

detention facility;

d. Provide that the declivity of a storm water detention basin be as gradual as possible, but within the limits

of existing water quality regulations;

e. Eliminate, where possible, public safety hazards associated with storm water detention facilities.

The commissioner shall also examine the usefulness of trash and safety racks, grates, bar screens and

lattices, and fencing, and recommend their use individually or in combination with respect to each type of

design for an inlet to an outlet structure of a storm water detention facility.

L.1991,c.194,s.5.

40:55D-96. Exceptions, permitted

4. The Commissioner of Environmental Protection may, upon application by any municipality, grant an

exception from any requirement of section 3 of P.L.1981, c.32 (C.40:55D-95), provided that the

commissioner shall determine that such exception will not increase flood damage or nonpoint pollution, or

constitute a threat to the public safety, within or without the municipality.

L.1981,c.32,s.4; amended 1991,c.194,s.2.

NJ State Planning 1997 Municipal Land Use Law 76

40:55D-97. Submission of storm water management plan, ordinances; approval

5. Every municipality shall submit a storm water management plan and implementing ordinances adopted

pursuant to this act to the county planning agency or county water resources association, as appropriate. No

plan or ordinances shall take effect without approval by said agency or association. Said agency or

association shall approve, conditionally approve, or disapprove said plan or ordinances in regard to their

compatibility with applicable municipal, county, regional or State storm water management plans. No storm

water management plan or ordinances shall be approved that are contrary to recognized storm water

management principles or public safety regulations adopted pursuant to section 5 of P.L.1991, c.194

(C.40:55D-95.1). The agency or association shall set forth in writing its reasons for disapproval of any plan

or ordinance, or in the case of the issuance of a conditional approval, the agency or association shall specify

the necessary amendments to the plan or ordinances. Any plan or ordinance approved pursuant to this

section shall take effect immediately. Any plan or ordinance conditionally approved according to this section

shall take effect upon the adoption by the governing body of the amendments proposed by the agency or

association. Where the agency or association fails to approve, conditionally approve, or disapprove a plan or

ordinance within 60 days of receipt of the plan or ordinance, the plan or ordinance shall be considered

approved.

L.1981,c.32,s.5; amended 1991,c.194,s.3.

40:55D-98. Grants for preparation of storm water management plans

The Commissioner of Environmental Protection, subject to available appropriations and grants from other

sources, is authorized to make grants to any municipality, county, county planning agency or county water

resources agency or other regional agency authorized to prepare storm water management plans. Any grants

to a municipality shall provide 90% of the cost of preparing storm water management plans. The

commissioner shall prescribe and promulgate, pursuant to law, procedures for applying for the grant and

terms and conditions for receiving the grant.

L.1981, c. 32, s. 6, eff. Feb. 12, 1981.

40:55D-99. Technical assistance and planning grants for municipalities from counties and county

planning agencies and water resources associations

Counties, county planning agencies and county water resources associations shall be authorized to provide

technical assistance and planning grants to municipalities to assist in the preparation and revision of

municipal storm water management plans and implementing ordinances pursuant to section 1 of this

supplementary act.

L.1981, c. 32, s. 7, eff. Feb. 12, 1981.

40:55D-100. Short title

This act shall be known and may be cited as "The Affordable Housing Act of 1983."

L.1983, c. 386, s. 1, eff. Jan. 1, 1984, operative Dec. 22, 1983.

40:55D-101. Legislative findings and declarations

The Legislature finds and declares that:

a. The housing needs of many New Jersey citizens remain unmet each year, exemplified by the fact that, in

recent years, only one-half of the estimated annual need for new housing units has been actually constructed.

b. The costs of conventional housing construction, mortgages, land and utilities have increased tremendously

in recent years making it increasingly difficult for certain segments of the population, notably the elderly,

families with young children, unmarried individuals, and young couples, to afford suitable conventional

housing.

NJ State Planning 1997 Municipal Land Use Law 77

c. Due to the conventional housing shortage in New Jersey, the Legislature has a responsibility to encourage

alternate means of housing for New Jersey citizens.

d. The design, durability and appearance of manufactured housing has improved significantly over the last

decade so that certain styles of manufactured homes are difficult, if not impossible, to distinguish from

conventional homes, and yet only 400 of these manufactured homes were sold Statewide during 1982.

e. Despite these significant improvements, there has not been a corresponding rapid escalation in the costs of

manufactured homes, with the result that these homes remain affordable for the general population.

f. It is, therefore, in the public interest to promote the use of manufactured homes as affordable housing in

New Jersey.

L.1983, c. 386, s. 2, eff. Jan. 1, 1984, operative Dec. 22, 1983.

40:55D-102. Definitions

As used in this act:

a. "Commissioner" means the Commissioner of the Department of Community Affairs;

b. "Grade" means a reference plane consisting of the average finished ground level adjacent to a structure,

building, or facility at all visible exterior walls;

c. "Manufactured home" means a unit of housing which:

(1) Consists of one or more transportable sections which are substantially constructed off site and, if more

than one section, are joined together on site;

(2) Is built on a permanent chassis;

(3) Is designed to be used, when connected to utilities, as a dwelling on a permanent or nonpermanent

foundation; and

(4) Is manufactured in accordance with the standards promulgated for a manufactured home by the secretary

pursuant to the "National Manufactured Housing Construction and Safety Standards Act of 1974," Pub.L.

93-383 (42 U.S.C. s. 5401 et seq.) and the standards promulgated for a manufactured or mobile home by the

commissioner pursuant to the "State Uniform Construction Code Act," P.L.1975, c. 217 (C. 52:27D-119 et

seq.);

d. "Mobile home park" means a parcel of land, or two or more parcels of land, containing no fewer than 10

sites equipped for the installation of manufactured homes, where these sites are under common ownership

and control for the purpose of leasing each site to the owner of a manufactured home for the installation

thereof, and where the owner or owners provide services, which are provided by the municipality in which

the park is located for property owners outside the park, which services may include but shall not be limited

to:

(1) The construction and maintenance of streets;

(2) Lighting of streets and other common areas;

(3) Garbage removal;

(4) Snow removal; and

(5) Provisions for the drainage of surface water from home sites and common areas.

A parcel, or any contiguous parcels, of land which contain, on the effective date of this act, no fewer than

three sites equipped for the installation of manufactured homes, and which otherwise conform to the

provisions of this subsection, shall qualify as a mobile home park for the purposes of this act;

NJ State Planning 1997 Municipal Land Use Law 78

e. "Nonpermanent foundation" means any foundation consisting of nonmortared blocks, wheels, concrete

slab, runners, or any combination thereof, or any other system approved by the commissioner for the

installation and anchorage of a manufactured home on other than a permanent foundation;

f. "Off site construction of a manufactured home" or section thereof means the construction of that home or

section at a location other than the location at which the home is to be installed;

g. "On site joining of sections of a manufactured home" means the joining of those sections at the location at

which the home is to be installed;

h. "Permanent foundation" means a system of support installed either partially or entirely below grade,

which is:

(1) Capable of transferring all design loads imposed by or upon the structure into soil or bedrock without

failure;

(2) Placed at an adequate depth below grade to prevent frost damage; and

(3) Constructed of material approved by the commissioner;

i. "Runners" means a system of support consisting of poured concrete strips running the length of the chassis

of a manufactured home under the lengthwise walls of that home;

j. "Secretary" means the Secretary of the United States Department of Housing and Urban Development; and

k. "Trailer" means a recreational vehicle, travel trailer, camper or other transportable, temporary dwelling

unit, with or without its own motor power, designed and constructed for travel and recreational purposes to

be installed on a nonpermanent foundation if installation is required.

L.1983, c. 386, s. 3, eff. Jan. 1, 1984, operative Dec. 22, 1983.

40:55D-103. Manufactured homes on land with title in owner

A municipal agency may allow manufactured homes on land the title to which is owned by the manufactured

home owner.

L.1983, c. 386, s. 4, eff. Jan. 1, 1984, operative Dec. 22, 1983.

40:55D-104. Prohibition of use by municipal agency of discriminatory development regulations to

exclude or restrict

A municipal agency shall not exclude or restrict, through its development regulations, the use, location,

placement, or joining of sections of manufactured homes which are not less than 22 feet wide, are on land

the title to which is held by the manufactured home owner, and are located on permanent foundations, unless

those regulations shall be equally applicable to all buildings and structures of similar use.

L.1983, c. 386, s. 5, eff. Jan. 1, 1984, operative Dec. 22, 1983.

40:55D-105. Review and approval of development regulations by municipal agency; determination of

mobile home parks as means of affordable housing

When reviewing and approving development regulations pertaining to residential development, a municipal

agency is to be encouraged to review those regulations to determine whether or not mobile home parks are a

practicable means of providing affordable housing in the municipality.

L.1983, c. 386, s. 6, eff. Jan. 1, 1984, operative Dec. 22, 1983.

40:55D-106. Trailers; inapplicability of act

Trailers shall not be subject to the provisions of this act.

L.1983, c. 386, s. 7, eff. Jan. 1, 1984, operative Dec. 22, 1983.

NJ State Planning 1997 Municipal Land Use Law 79

40:55D-107. Historic preservation commission

a. The governing body may by ordinance provide for a historic preservation commission.

b. Every historic preservation commission shall include, in designating the category of appointment, at least

one member of each of the following classes:

Class A--a person who is knowledgeable in building design and construction or architectural history and

who may reside outside the municipality; and

Class B--a person who is knowledgeable or with a demonstrated interest in local history and who may reside

outside the municipality.

c. A historic preservation commission shall consist of five, seven or nine regular members and may have not

more than two alternate members. Of the regular members a total of at least one less than a majority shall be

of Classes A and B.

Those regular members who are not designated as Class A or B shall be designated as Class C. Class C

members shall be citizens of the municipality who shall hold no other municipal office, position or

employment except for membership on the planning board or board of adjustment.

Alternate members shall meet the qualifications of Class C members. The mayor or, if so specified by

ordinance, the chairman of the planning board shall appoint all members of the commission and shall

designate at the time of appointment the regular members by class and the alternate members as "Alternate

No. 1" and "Alternate No. 2." The terms of the members first appointed under this act shall be so determined

that to the greatest practicable extent, the expiration of the terms shall be distributed, in the case of regular

members, evenly over the first four years after their appointment, and in the case of alternate members,

evenly over the first two years after their appointment; provided that the initial term of no regular member

shall exceed four years and that the initial term of no alternate member shall exceed two years. Thereafter,

the term of a regular member shall be four years, and the term of an alternate member shall be two years. A

vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.

Notwithstanding any other provision herein, the term of any member common to the historic preservation

commission and the planning board shall be for the term of membership on the planning board; and the term

of any member common to the historic preservation commission and the board of adjustment shall be for the

term of membership on the board of adjustment.

The historic preservation commission shall elect a chairman and vice-chairman from its members and select

a secretary, who may or may not be a member of the historic preservation commission or a municipal

employee.

Alternate members may participate in discussions of the proceedings but may not vote except in the absence

or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote

instead of an alternate member. In the event that a choice must be made as to which alternate member is to

vote, Alternate No. 1 shall vote.

d. No member of any historic preservation commission shall be permitted to act on any matter in which he

has, either directly or indirectly, any personal or financial interest. e. A member of a historic preservation

body may, after public hearing if he requests it, be removed by the governing body for cause.

L. 1985, c. 516, s. 21.

40:55D-108. Historic preservation commission funded by governing body

22. a. The governing body shall make provision in its budget and appropriate funds for the expenses of the

historic preservation commission.

NJ State Planning 1997 Municipal Land Use Law 80

b. The historic preservation commission may employ, contract for, and fix the compensation of experts and

other staff and services as it shall deem necessary. The commission shall obtain its legal counsel from the

municipal attorney at the rate of compensation determined by the governing body, unless the governing

body, by appropriation, provides for separate legal counsel for the commission. Expenditures pursuant to

this subsection shall not exceed, exclusive of gifts or grants, the amount appropriated by the governing body

for the commission's use.

L.1985,c.516,c.22; amended 1991,c.199,s.7.

40:55D-109. Responsibilities of commission

The historic preservation commission shall have the responsibility to:

a. Prepare a survey of historic sites of the municipality pursuant to criteria identified in the survey report;

b. Make recommendations to the planning board on the historic preservation plan element of the master plan

and on the implications for preservation of historic sites of any other master plan elements;

c. Advise the planning board on the inclusion of historic sites in the recommended capital improvement

program;

d. Advise the planning board and board of adjustment on applications for development pursuant to section

24 of this amendatory and supplementary act;

e. Provide written reports pursuant to section 25 of this amendatory and supplementary act on the application

of the zoning ordinance provisions concerning historic preservation; and

f. Carry out such other advisory, educational and informational functions as will promote historic

preservation in the municipality.

L. 1985, c. 516, s. 23.

40:55D-110. Applications for development referred to historic preservation commission

24. The planning board and board of adjustment shall refer to the historic preservation commission every

application for development submitted to either board for development in historic zoning districts or on

historic sites designated on the zoning or official map or identified in any component element of the master

plan. This referral shall be made when the application for development is deemed complete or is scheduled

for a hearing, whichever occurs sooner. Failure to refer the application as required shall not invalidate any

hearing or proceeding. The historic preservation commission may provide its advice, which shall be

conveyed through its delegation of one of its members or staff to testify orally at the hearing on the

application and to explain any written report which may have been submitted.

L.1985,c.516,s.24; amended 1991,c.199,s.8.

40:55D-111. Issuance of permits pertaining to historic sites referred to historic preservation

commission

25. If the zoning ordinance designates and regulates historic sites or districts pursuant to subsection i. of

section 52 of P.L.1975, c.291 (C.40:55D-65), the governing body shall by ordinance provide for referral of

applications for issuance of permits pertaining to historic sites or property in historic districts to the historic

preservation commission for a written report on the application of the zoning ordinance provisions

concerning historic preservation to any of those aspects of the change proposed, which aspects were not

determined by approval of an application for development by a municipal agency pursuant to the "Municipal

Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.). The historic preservation commission shall submit its

report either to the administrative officer or the planning board, as specified by ordinance. If the ordinance

specifies the submission of the historic preservation commission's report to the planning board, the planning

board shall report to the administrative officer.

NJ State Planning 1997 Municipal Land Use Law 81

In the case of a referral by the administrative officer of a minor application for the issuance of a permit

pertaining to historic sites or property in historic districts, as defined in the zoning ordinance, the chairman

of the historic preservation commission may act in the place of the full commission for purposes of this

section; and, if the ordinance specifies the submission to the planning board of a commission report on a

minor application, the ordinance may authorize the chairman or a subcommittee of the planning board to act

in place of the full board.

The historic preservation commission or the planning board, as the case may be, shall report to the

administrative officer within 45 days of his referral of the application to the historic preservation

commission. If within the 45-day period the historic preservation commission or the planning board, as the

case may be, recommends to the administrative officer against the issuance of a permit or recommends

conditions to the permit to be issued, the administrative officer shall deny issuance of the permit or include

the conditions in the permit, as the case may be. Failure to report within the 45-day period shall be deemed

to constitute a report in favor of issuance of the permit and without the recommendation of conditions to the

permit.

L.1985,c.516,s.25; amended 1991,c.199,s.9.

40:55D-112. "Landmark" as substitute

The word "landmark" may substitute, in any ordinance, resolution, determination or official action pursuant

to the "Municipal Land Use Law" (C. 40:55D-1 et seq.) and this amendatory and supplementary act, for

"historic," "historic preservation" and "historic site."

L. 1985, c. 516, s. 26.

40:55D-113. Short title

Sections 1 through 14 and 17 through 19 of this act shall be known and may be cited as the "Burlington

County Transfer of Development Rights Demonstration Act."

L.1989,c.86,s.1.

40:55D-114. Findings, declarations

The Legislature finds and declares that as the most densely populated state in the nation, the State of New

Jersey is faced with the challenge of accommodating vital growth while maintaining the environmental

integrity and preserving the natural resources and cultural heritage of the Garden State; that the

responsibility for meeting this challenge falls most heavily upon local government to appropriately shape the

land use patterns so that growth and preservation become compatible goals; that until now municipalities

have lacked effective and equitable means by which potential development may be transferred from areas

where preservation is most appropriate to areas where growth can be better accommodated and maximized;

and that the tools necessary to meet the challenge of balanced growth in an equitable manner in New Jersey

must be made available to local government as the architects of New Jersey's future.

The Legislature further finds and declares that prior to the implementation of development potential transfer

programs on a Statewide basis, it is necessary to demonstrate its feasibility in a pilot program; that such a

pilot program should take place in an area where there is experience with development easement purchase

and transfer; that Burlington County served as the program area for the "Agricultural Preserve

Demonstration Program Act," P.L.1976, c.50 (C.4:1B-1 et seq.), and has participated to a greater extent than

any other county in both the pinelands development credit program instituted under the "Pinelands

Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.) and the development easement purchase program

instituted under the "Agriculture Retention and Development Act," P.L.1983, c.32 (C.4:1C-11 et al.); that

because of this participation and the familiarity of local government units and the residents of the county

with this land use planning technique, it is especially suited and provides the most conducive laboratory to

demonstrate the feasibility of such a program.

NJ State Planning 1997 Municipal Land Use Law 82

L.1989,c.86,s.2.

40:55D-115. Definitions

As used in this act:

"Agricultural land" means land identified as prime, unique, or of State importance according to criteria

adopted by the State Soil Conservation Committee with emphasis on lands included in an agricultural

development area duly identified by a county agriculture development board and certified by the State

Agriculture Development Committee according to the provisions of section 11 of P.L.1983, c.32 (C.4:1C-

18);

"County agriculture development board" or "CADB" means the county agriculture development board

established by Burlington county pursuant to the provisions of section 7 of P.L.1983, c.32 (C.4:1C-14);

"Development potential" means the maximum number of dwelling units or square feet of nonresidential

floor area that could be constructed on a specified lot or in a specified zone under the master plan and land

use regulations in effect on the date of the adoption of the development transfer ordinance, and in

accordance with recognized environmental constraints;

"Development transfer" means the conveyance of development potential, or the permission for development,

from one or more lots to one or more other lots by deed, easement, or other means as authorized by

ordinance;

"Municipality" means any municipality in Burlington County;

"Infrastructure plan" means the water, sewer, and highway development plan for the receiving zone

established by a development transfer ordinance;

"Development transfer bank" means a bank created pursuant to section 13 of this act;

"Instruments" means the easement, credit, or other deed restriction used to record a development transfer;

"Receiving zone" means an area designated in the master plan and zoning ordinance, adopted pursuant to the

provisions of P.L.1975, c.291 (C.40:55D-1 et seq.), within which development is to be increased, and which

is otherwise consistent with the provisions of section 6 of this act;

"Sending zone" means an area designated in the master plan and zoning ordinance, adopted pursuant to the

provisions of P.L.1975, c.291 (C.40:55D-1 et seq.), within which development is to be prohibited or

restricted and which is otherwise consistent with the provisions of section 6 of this act.

L.1989,c.86,s.3.

40:55D-116. Development transfers

a. The governing body of any municipality in Burlington County may, by ordinance approved by the county

planning board, provide for the transfer of development within its jurisdiction. The governing bodies of two

or more municipalities may, by substantially similar ordinances, provide for a joint program for the transfer

of development, including transfers from sending zones in one municipality to receiving zones in the other.

b. The Office of State Planning, established pursuant to section 6 of P.L.1985, c.398 (C.52:18A-201), shall

provide such technical assistance as may be requested by municipalities or the county planning board, and as

may be reasonably within the capacity of the office to provide, for the purpose of providing for development

transfers pursuant to the provisions of this act. The office shall also carry out its responsibilities as provided

in sections 9 and 11 of this act.

L.1989,c.86,s.4.

NJ State Planning 1997 Municipal Land Use Law 83

40:55D-117. Report; infrastructure plan; amendment of master plan, land use regulations

Prior to the adoption of any development transfer ordinance, a municipality interested in adopting the

ordinance shall:

a. Prepare a report that includes the following:

(1) an estimate of the anticipated population and economic growth in the municipality for the succeeding 10

years;

(2) the identification and description of all prospective sending and receiving zones;

(3) an estimate of the development potential of the prospective sending and receiving zones;

(4) an estimate of the typical land values of the proposed sending zone;

(5) an estimate of existing and proposed infrastructure of the proposed receiving zone; and

(6) a presentation of the procedure and method for issuing the instruments necessary to convey the

development potential from the sending zone to the receiving zone.

b. Cause to be prepared an infrastructure plan for the receiving zone, which includes the location and cost of

all infrastructure and a method of cost sharing if any portion of the cost is to be assessed against developers.

The plan shall be enacted by ordinance prior to or concurrent with enactment of any development transfer

ordinance.

c. Incorporate in its master plan and land use regulations explicit planning objectives and design standards

for the receiving zone so that applications for development that maximize the use of development transfer

and that are consistent with the planning objectives and design standards can be expedited. The municipality

may, through application fees for development in the receiving zone, be reimbursed on a pro rata basis for

the cost of amending its master plan and land use regulations.

The development transfer ordinance shall not take effect until the report and plans required under this

section have been prepared and the conclusions therefrom have been included in the master plan adopted

pursuant to section 19 of P.L.1975, c.291 (C.40:55D-28).

L.1989,c.86,s.5.

40:55D-118. Designation of sending, receiving zones

The municipality shall, in view of the information gathered from the report and plans prepared pursuant to

section 5 of this act, prepare a development transfer ordinance that designates sending and receiving zones.

a. In creating and establishing sending and receiving zones, the governing body of the municipality shall

designate tracts of land of such size and number as may be necessary to carry out the purposes of this act.

b. All land in a sending zone shall have one or more of the following characteristics:

(1) substantially undeveloped or unimproved farmland, woodland, floodplain, wetlands, endangered species

habitat, aquifer recharge area, recreation or park land, waterfront, or steeply sloped land;

(2) land substantially improved or developed in a manner so as to present a unique and distinctive aesthetic,

architectural, or historical point of interest in the municipality;

(3) other improved or unimproved areas that should remain at low densities for reasons of inadequate

transportation, sewerage or other infrastructure, or for such other reasons as may be necessary to implement

local or regional plans.

c. Lands permanently restricted through development or conservation easements existing prior to the

adoption of a development transfer ordinance may be included in a sending zone upon a finding by the

municipal governing body that this inclusion is in the public interest.

NJ State Planning 1997 Municipal Land Use Law 84

d. The receiving zone shall be appropriate and suitable for development and shall be at least sufficient to

accommodate at all times all of the development potential of the sending zone.

e. The development potential of the receiving zone shall be determined by the governing body of the

municipality utilizing the report and plans prepared pursuant to section 5 of this act; be realistically

achievable in a functioning market as of the date of the adoption of the development transfer ordinance;

provide for a minimum of twice the development permitted in the receiving zone as of the date of the

adoption of the development transfer ordinance; and be consistent with the criteria established pursuant to

subsection b. of section 8 of this act. No density increases may be achieved in a receiving zone without the

use of appropriate instruments of transfer.

f. The municipal governing body shall, pursuant to the ordinance, direct the municipal planning board to

carry out the development transfer program.

L.1989,c.86,s.6.

40:55D-119. Development transfer ordinance

a. The development transfer ordinance shall provide for the issuance of such instruments as may be

necessary and the adoption of procedures for recording the permitted use of the land at the time of the

recording, the separation of the development potential from the land, and the recording of the allowable

residual use of the land upon separation of the development potential.

b. The development transfer ordinance shall specifically provide that upon the transfer of the development

potential from a sending zone, the owner of the property from which the development potential has been

transferred shall cause a statement containing the conditions of the transfer and the terms of the restrictions

of the use and development of the land to be attached to and recorded with the deed of the land in the same

manner as the deed was originally recorded. These restrictions and conditions shall state that any

development inconsistent therewith is expressly prohibited, shall run with the land, and shall be binding

upon the landowner and every successor in interest thereto.

c. The development transfer ordinance shall provide that, on granting a use variance under the provisions of

section 57 of P.L.1975, c.291 (C.40:55D-70) that increases the development potential of a parcel of property

not in the designated receiving zone for which the variance has been granted by more than 5%, that parcel of

property shall constitute a receiving zone and the provisions of the ordinance for receiving zones shall apply

with respect to the amount of development potential required to implement that variance.

L.1989,c.86,s.7.

40:55D-120. Review of ordinance

a. Prior to adoption of the development transfer ordinance, the municipality shall submit a copy of the

proposed ordinance, copies of all reports and plans prepared pursuant to section 5 of this act, and proposed

municipal master plan changes necessary for the enactment of the development transfer ordinance to the

county planning board. If the ordinance and master plan changes involve agricultural land, then the

Burlington County Agriculture Development Board shall also be provided information identical to that

provided to the county planning board.

b. The county planning board, upon receiving the development transfer ordinance and accompanying

documentation, shall conduct a review of the ordinance with regard to the following criteria:

(1) consistency with the adopted master plan of the county;

(2) support of regional objectives for agricultural land preservation, natural resource management and

protection, historic or architectural conservation, or the preservation of other public values as enumerated in

subsection b. of section 6 of this act;

(3) consistency with reasonable population and economic forecasts for the county;

NJ State Planning 1997 Municipal Land Use Law 85

(4) adequacy of present or proposed infrastructure for concentrated growth; and

(5) sufficiency of the receiving zone to accommodate the development potential that may be transferred

from sending zones and a reasonable assurance of marketability of any instruments of transfer that may be

created.

c. Any municipality located in whole or in part in the pinelands area, as defined in P.L.1979, c.111

(C.13:18A-1 et seq.), shall also submit the proposed development transfer ordinance, reports and plans, and

master plan changes to the Pinelands Commission for review. The Pinelands Commission shall determine

whether the ordinance is compatible with the pinelands development credit program implemented pursuant

to P.L.1985, c.310 (C.13:18A-30 et seq.) and is otherwise consistent with the comprehensive management

plan adopted by the Pinelands Commission pursuant to P.L.1979, c.111 (C.13:18A-1 et seq.). If the

commission determines that the development transfer ordinance is not compatible or consistent, the

commission shall make such recommendations as may be necessary to conform the ordinance with the

comprehensive management plan. The municipality shall not adopt the ordinance unless the changes

recommended by the Pinelands Commission have been included in the ordinance.

L.1989,c.86,s.8.

40:55D-121. Review, recommendations by county planning board, CADB, Office of State Planning

a. Within 60 days of receiving the development transfer ordinance and accompanying documentation, the

county planning board shall submit to the municipality formal comments detailing its review and shall either

recommend or not recommend enactment of the development transfer ordinance. If enactment of the

ordinance is recommended, the municipality may proceed with adoption of the ordinance. Failure to

recommend or not recommend enactment of the ordinance within the 60-day period shall constitute

recommendation of the ordinance.

b. The CADB shall review the development transfer ordinances and accompanying documentation within 30

days of receipt thereof, and shall submit such written recommendations as it deems appropriate, to the

county planning board.

c. If the county planning board does not recommend enactment, the reasons therefor shall be clearly stated in

their formal comments. If the objections of the county planning board cannot be resolved to the satisfaction

of both the municipality and the county planning board within an additional 30 days, the municipality shall

petition the Office of State Planning to render a final determination. In the event that a development transfer

ordinance involves agricultural land, the municipality shall petition the Office of State Planning for a final

determination.

d. The Office of State Planning shall review the record of comment of the county planning board, and the

development transfer ordinance and supporting documentation, and within 60 days approve, approve with

conditions, or disapprove the transfer ordinance stating in writing the reasons therefor. Failure of the Office

of State Planning to approve, approve with conditions, or disapprove the development transfer ordinance

within the 60-day period constitutes approval of the ordinance. The basis for review by the Office of State

Planning shall be:

(1) compliance of the development transfer ordinance with the provisions of this act,

(2) accuracy of the information developed in the report and plans prepared pursuant to subsections a., b., and

c. of section 5 of this act; and

(3) an assessment of the potential of successful implementation of the development transfer ordinance.

L.1989,c.86,s.9.

NJ State Planning 1997 Municipal Land Use Law 86

40:55D-122. Recording of transfer; record to assessor; taxation

a. All development transfers shall be recorded in the manner of a deed in the book of deeds in the office of

the Burlington county clerk. This recording shall specify the lot and block number of the parcel in the

sending zone from which the development potential was transferred and the lot and blocknumber of the

parcel in the receiving zone to which the development potential was transferred.

b. The county clerk shall transmit to the assessor of the municipality in which a development transfer has

occurred a record of the transfer and all pertinent information required to value, assess, and tax the

properties subjectto the transfer in a manner consistent with subsection c. of this section.

c. Property from which and to which development potential has been transferred shall be assessed at its fair

market value reflecting this development transfer. Development potential that has been removed from a

sending zone but has not yet been employed in a receiving zone shall not be assessed for real property

taxation. Nothing in this act shall be construed to affect, or in any other way alter, the valuation assessment,

or taxation of land that is valued, assessed, and taxed pursuant to the "Farmland Assessment Act of 1964,"

P.L.1964, c.48 (C.54:4-23.1 et seq.).

d. Property in a sending or receiving zone that has been subject to a development transfer shall be newly

valued, assessed, and taxed as of October 1next following the development transfer.

e. Development potential that has been conveyed from a property pursuantto this act is not subject to the fee

imposed pursuant to P.L.1968, c.49 (C.46:15-5 et seq.).

L.1989,c.86,s.10.

40:55D-123. 3-year, six-year reviews; prevention of repeal

a. The development transfer ordinance shall be reviewed by the planning board and governing body of the

municipality at the end of three years subsequent to enactment. This review shall include an analysis of

development potential transactions in both the private and public market, an update of current conditions in

comparison to the original report prepared pursuant to section 5 of this act, and an assessment of the

performance goals of the development transfer program including an evaluation of the units constructed with

and without the utilization of the development transfer ordinance. A report of findings from this review shall

be submitted to the county planning board and, where the sending zone includes agricultural land, the

CADB for review and recommendations. Based on this review the municipality shall act to maintain and

enhance the value of development transfer potential not yet utilized and, if necessary, amend the

infrastructure plan and comprehensive development plan and design standards prepared pursuant to section 5

of this act.

b. The development transfer ordinance shall be reviewed by the planning board and governing body of the

municipality at the end of six years subsequent to enactment. This review shall provide for the examination

of the development transfer ordinance to determine whether the program for development transfer and the

permitted uses in the sending zone continue to remain economically viable, and shall require an update of

the report and plans prepared pursuant to section 5 of this act. If at least 30% of the development potential

available on the market at market value has not been transferred at the end of this six-year period, the

municipal governing body shall repeal the development transfer ordinance within 90 days of the end of the

six-year period unless one of the following is met:

(1) the municipality immediately takes action to acquire or provide for the private purchase of the difference

between the development potential already transferred and 50% of the total development transfer potential

created in the sending zone under the development transfer ordinance;

(2) a majority of the property owners in a sending zone who own land from which the development potential

has not yet been transferred agree that the development transfer ordinance should remain in effect; or

NJ State Planning 1997 Municipal Land Use Law 87

(3) the municipality can demonstrate either future success or can demonstrate that low levels of development

transfer activity is due not to ordinance failure but to low levels of development demand in general. This

demonstration shall require the concurrence of the county planning board and the Office of State Planning,

and shall be the subject of a municipal public hearing conducted prior to a final determination regarding the

future viability of the development transfer program.

c. Thereafter the development transfer ordinance shall provide for review thereof by the planning board and

the governing body of the municipality at least once every six years in conjunction with the review and

update of the master plan of the municipality pursuant to the provisions of section 76 of P.L.1975, c.291

(C.40:55D-89). This review shall provide for the examination of the ordinance to determine whether the

program and uses permitted in the sending zone continue to be economically viable and shall require an

update of the report and plans prepared pursuant to section 5 of this act.

d. If 60% of the development potential has not been transferred at the end of a 12-year period, the municipal

governing body shall repeal the development transfer ordinance within 90 days at the end of the 12-year

period unless the municipality meets the standards established pursuant to subsection b. of this section.

L.1989,c.86,s.11.

40:55D-124. Repeal of development transfer ordinance

a. If the development transfer ordinance is repealed, the municipality shall, by ordinance, amend its master

plan to reflect the repeal and shall provide for continued use of development transfers that have been

separated from a sending zone but which have not yet been redeemed by transfer to a receiving zone by

establishing density bonuses for development transfers to designated areas of the municipality for a period of

not less than 10 years.

b. The repeal of a development transfer ordinance shall in no way rescind or otherwise affect the restrictions

imposed and recorded pursuant to section 7 of this act on the use of the land from which the development

potential has been transferred, unless all of the municipal, county, or State agencies to whom the deed

restrictions run and whose funds were used to purchase the easement agree that it is in the public interest to

release the restrictions.

L.1989,c.86,s.12.

40:55D-125. Development transfer bank

a. The governing body of Burlington county or a municipality therein may provide for the purchase, sale, or

exchange of the development potential that is available for transfer from a sending zone by the establishment

of a development transfer bank. Any development transfer bank established therefor shall be governed by a

board of directors comprising five members appointed by the governing body of the municipality or

Burlington county, as the case may be. The members shall have expertise in either banking, law, land use

planning, natural resource protection, historic site preservation or agriculture. The bank shall be funded at a

level equal to at least 10% of the market value of the sending zone prior to the implementation of the

development transfer ordinance for the purchase, sale, or exchange and shall be renewed to this funding

level on an annual basis. For the purposes of this act and the "Local Bond Law," P.L.1960, c.169 (C.40A:2-1

et seq.), a purchase by the bank shall be considered an acquisition of lands for public purposes.

b. The development transfer bank is authorized to purchase property in a sending zone if:

(1) Adequate funds have been provided for these purposes; and,

(2) The person from whom the development potential is to be purchased demonstrates possession of

marketable title to the property, is legally empowered to restrict the use of the property in conformance with

this act, and certifies that the property is not otherwise encumbered or transferred.

NJ State Planning 1997 Municipal Land Use Law 88

c. The development transfer bank may, for the purposes of its own development potential transactions,

establish a municipal average of the value of the development potential of all property in a sending zone of a

municipality within its jurisdiction, which value shall generally reflect market value prior to the effective

date of the development transfer ordinance. The establishment of this municipal average shall not prohibit

the purchase of development potential for any price by private sale or transfer but shall be used only when

the development transfer bank itself is purchasing the development potential of property in the sending zone.

Several average values in any sending zone may be established for greater accuracy of valuation.

d. The development transfer bank may sell, exchange, or otherwise convey the development potential of

property that it has purchased or otherwise acquired pursuant to the provisions of this act, but only in a

manner that does not substantially impair the private sale or transfer of development potential.

e. When the sending zone includes agricultural land a development transfer bank shall, when considering the

purchase of development potential based upon values derived by municipal averaging, submit the municipal

average arrived at pursuant to subsection c. of this section for review and comment to the CADB. The

development transfer bank shall coordinate the development transfer program with the farmland

preservation program established pursuant to P.L.1983, c.32 (C.4:1C-11 et al.) to the maximum extent

practicable and feasible.

f. A development transfer bank may apply for funds for the purchase of development potential under the

provisions of P.L.1978, c.118, P.L.1983, c.354, or any other act providing funds for the purpose of acquiring

and developing land for recreation and conservation purposes consistent with the provisions and conditions

of those acts.

g. A development transfer bank may apply for matching funds for the purchase of development potential

under the provisions of P.L.1981, c.276 for the purpose of farmland preservation and agricultural

development consistent with the provisions and conditions of that act and P.L.1983, c.32 (C.4:1C-11 et al.).

L.1989,c.86,s.13.

40:55D-125.1. Solid waste facility buffer zone; definitions

1. a. The governing body of any county authorized pursuant to law to establish a development transfer bank,

and which has funded that bank at least to the minimum extent required by law, may identify a buffer zone

around any solid waste facility or sludge management facility located within the county, and the county

development transfer bank, utilizing funds in that bank, may purchase or otherwise acquire the development

potential of all or any part of the buffer zone, notwithstanding whether or not the municipality or

municipalities within which the buffer zone is located has adopted a development transfer ordinance where

authorized pursuant to law. The county development transfer bank may sell, exchange, or otherwise convey

any such development potential purchased or otherwise acquired by the county development transfer bank,

where authorized pursuant to law.

b. As used in this section:

"Development potential" means the same as that term is defined pursuant to section 3 of P.L.1989, c.86

(C.40:55D-115).

"Development transfer" means the same as that term is defined pursuant to section 3 of P.L.1989, c.86

(C.40:55D-115).

"Solid waste facility" means the same as that term is defined pursuant to section 3 of P.L.1970, c.39

(C.13:1E-3).

"Sludge" means the solid residue and associated liquid resulting from physical, chemical, or biological

treatment of domestic or industrial wastewater.

"Sludge management facility" means any facility established for the purpose of managing, processing, or

disposing of sludge.

NJ State Planning 1997 Municipal Land Use Law 89

"Wastewater" means residential, commercial, industrial, or agricultural liquid waste, sewage, or stormwater

runoff, or any combination thereof, or other residue discharged to or collected by a sewerage system.

L.1994,c.151.

40:55D-126. Sale of development potential

14. If the governing body of Burlington County provides for the acquisition of a development easement

under the provisions of P.L.1983, c.32 (C.4:1C-11 et al.), it may sell the development potential associated

with the development easement subject to the terms and conditions of the development transfer ordinance

adopted pursuant to this act; provided that if the development easement was purchased using moneys

provided under the "Farmland Preservation Bond Act of 1981," P.L.1981, c.276, a percentage of all

revenues generated through the resale of the development potential shall be refunded to the State in an

amount equal to the State's percentage contribution to the original development easement purchase.

Notwithstanding the foregoing, such refund shall not be paid to the State in the event the State Treasurer

determines that such refund would adversely affect the tax-exempt status of any bonds authorized pursuant

to the "Farmland Preservation Bond Act of 1981," P.L.1981, c.276. This repayment shall be made within 90

days after the end of the calendar year in which the sale occurs.

L.1989,c.86,s.14; amended 1993,c.339,s.9.

40:55D-127. Right to bargain for equitable interest

Notwithstanding any other provision of this act or of any other applicable law, nothing in this act shall be

construed to limit or foreclose the right of a sending zone transferor or a receiving zone transferee of a

development transfer pursuant to this act to bargain, wholly or partially in lieu of a cash sale price, for an

equitable interest in any development in which the transfer may be used.

Any contract or conveyance of development potential in which the consideration for the transaction is, in

whole or in part, an equitable interest remaining in the grantor, shall be a recordable instrument to be

recorded consistent with the applicable provisions of Title 46 of the Revised Statutes.

L.1989,c.86,s.17.

40:55D-128. Farm benefits rights

Agricultural land involved in an approved development transfer ordinance shall be provided the right to farm

benefits under P.L.1983, c.32 (C.4:1C-11 et al.) and other benefits that may be provided pursuant to

P.L.1983, c.31 (C.4:1C-1 et al.).

L.1989,c.86,s.18.

40:55D-129. Reports; analysis

a. The governing body of a municipality which adopts a development transfer ordinance shall annually

prepare and submit a report on the operation of the development transfer ordinance to the county planning

board.

b. The county planning board shall submit copies of these reports along with an analysis of the effectiveness

of the ordinances in achieving the purposes of this act to the State Planning Commission on July 1 of the

third year next following enactment of this act.

c. The State Planning Commission shall submit, to the Governor, the President of the Senate, and to the

Speaker of the General Assembly 90 days subsequent to receiving the report from the Burlington county

planning board, copies of its analysis along with its recommendations as to the advisability of enacting

transfer of development rights enabling legislation on a Statewide basis.

L.1989,c.86,s.19.

NJ State Planning 1997 Municipal Land Use Law 90

40:55D-130. Short title

1. This act shall be known and may be cited as the "Permit Extension Act."

L.1992,c.82,s.1.

40:55D-131. Findings, declarations

2. The Legislature finds and determines that:

a. There exists a state of economic emergency in the State of New Jersey, which began on January 1, 1989,

and is anticipated to extend at least through December 31, 1996, which has drastically affected various

segments of the New Jersey economy, but none as severely as the State's banking, real estate and

construction sectors.

b. The process of obtaining planning and zoning board of adjustment approvals for subdivisions, site plans

and variances is difficult, time consuming and expensive, both for private applicants and government bodies.

c. The process of obtaining the myriad other government approvals, such as wetlands permits, sewer

extension permits, on-site wastewater disposal permits, stream encroachment permits, highway access

permits, and numerous waivers and variances, is also difficult and expensive; further, changes in the law can

render these approvals, if expired or lapsed, impossible to renew or to re-obtain.

d. The current economic crisis has wreaked devastation on the building industry, and many landowners and

developers are seeing their life's work destroyed by the lack of credit and dearth of buyers and tenants, due

to uncertainty over the state of the economy and high levels of unemployment.

e. The construction industry and related trades are sustaining severe economic losses, and the lapsing of

government development approvals is exacerbating those losses.

f. Due to the current inability of builders to obtain construction financing, under existing economic

conditions, more and more once-approved permits are expiring or lapsing and, as these approvals lapse,

lenders must re-appraise and thereafter substantially lower real estate valuations established in conjunction

with approved projects, thereby requiring the reclassification of numerous loans which, in turn, affects the

stability of the banking system and reduces the funds available for future lending, thus creating more severe

restrictions on credit and leading to a vicious cycle of default.

g. As a result of the continued downturn of the economy, and the continued expiration of approvals which

were granted by State and local governments, it is possible that thousands of government actions will be

undone by the passage of time.

h. Obtaining an extension of an approval pursuant to existing statutory or regulatory provisions is both costly

in terms of time and financial resources, and insufficient to cope with the extent of the present financial

emergency; moreover, the costs imposed fall on the public as well as the private sector.

i. Obtaining extensions of approvals granted by State government is frequently impossible, always difficult,

and always expensive and no policy reason is served by the expiration of these permits, which were usually

approved only after exhaustive review of the application.

j. It is the purpose of this act to prevent the wholesale abandonment of approvals due to the present

unfavorable economic conditions, by tolling the expiration of these approvals until such time as the

economy improves, thereby preventing a waste of public and private resources.

L.1992,c.82,s.2; amended 1994,c.145,s.1.

40:55D-132. Definitions

3. As used in this act:

NJ State Planning 1997 Municipal Land Use Law 91

"Approval" means any approval of a soil erosion and sediment control plan granted by a local soil

conservation district under the authority conferred by R.S.4:24-22 et seq., waterfront development permit

issued pursuant to R.S.12:5-1 et seq., permit issued pursuant to "The Wetlands Act of 1970," P.L.1970,

c.272 (C.13:9A-10 et seq.), permit issued pursuant to the "Freshwater Wetlands Protection Act," P.L.1987,

c.156 (C.13:9B-1 et seq.), approval of an application for development granted by the Delaware and Raritan

Canal Commission pursuant to the "Delaware and Raritan Canal State Park Law of 1974," P.L.1974, c.118

(C.13:13A-1 et seq.), permit issued by the Hackensack Meadowlands Development Commission pursuant to

the "Hackensack Meadowlands Reclamation and Development Act," P.L.1968, c.404 (C.13:17-1 et seq.),

approval of an application for development granted by the Pinelands Commission pursuant to the "Pinelands

Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), permit issued pursuant to the "Coastal Area Facility

Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), septic approval granted pursuant to Title 26 of the

Revised Statutes, permit granted pursuant to R.S.27:7-1 et seq. or any supplement thereto, permit granted by

the Department of Transportation pursuant to Title 27 of the Revised Statutes or under the general authority

conferred by State law, approval granted by a sewerage authority pursuant to the "sewerage authorities law,"

P.L.1946, c.138 (C.40:14A-1 et seq.), approval granted by a municipal authority pursuant to the "municipal

and county utilities authorities law," P.L.1957, c.183 (C.40:14B-1 et seq.), approval issued by a county

planning board pursuant to Chapter 27 of Title 40 of the Revised Statutes, preliminary and final approval

granted in connection with an application for development pursuant to the "Municipal Land Use Law,"

P.L.1975, c.291 (C.40:55D-1 et seq.), permit granted pursuant to the "State Uniform Construction Code

Act," P.L.1975, c.217 (C.52:27D-119 et seq.) permit or certification issued pursuant to the "Water Supply

Management Act," P.L.1981, c.262 (C.58:1A-1 et seq.), permit granted authorizing the drilling of a well

pursuant to P.L.1947, c.377 (C.58:4A-5 et seq.), certification or permit granted, or exemption from a

sewerage connection ban granted, pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-

1 et seq.), certification granted pursuant to "The Realty Improvement Sewerage and Facilities Act (1954),"

P.L.1954, c.199 (C.58:11-23 et seq.), certification or approval granted pursuant to P.L.1971, c.386 (C.58:11-

25.1 et al.), certification issued pursuant to the "Water Quality Planning Act," P.L.1977, c.75 (C.58:11A-1 et

seq.), approval granted pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.),

stream encroachment permit issued pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19

(C.58:16A-50 et seq.), any municipal or county approval or permit granted under the general authority

conferred by State law, or any other government authorization of any development application or any permit

related thereto whether that authorization is in the form of a permit, approval, license, certification, waiver,

letter of interpretation, agreement or any other executive or administrative decision which allows a

development to proceed.

"Development" means the division of a parcel of land into two or more parcels, the construction,

reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure

or facility, or of any grading, soil removal or relocation, excavation or landfill or any use or change in the

use of any building or other structure or land or extension of the use of land.

"Economic emergency" means the period beginning January 1, 1989 and continuing through to December

31, 1996.

"Government" means any municipal, county, regional or State government, or any agency, department,

commission or other instrumentality thereof.

L.1992,c.82,s.3; amended 1994,c.145,s.2.

40:55D-133. Extension of approval; exceptions

4. a. For any government approval which expired or is scheduled to expire during the economic emergency,

that approval is automatically extended until December 31, 1996, except as otherwise provided hereunder.

Nothing in this act shall prohibit the granting of such additional extensions as are provided by law when the

extensions granted by this act shall expire.

NJ State Planning 1997 Municipal Land Use Law 92

b. Nothing in this act shall be deemed to extend or purport to extend any permit issued by the government of

the United States or any agency or instrumentality thereof, or to any permit by whatever authority issued of

which the duration of effect or the date or terms of its expiration are specified or determined by or pursuant

to law or regulation of the federal government or any of its agencies or instrumentalities.

c. Nothing in this act shall be deemed to extend any permit or approval issued pursuant to the "Pinelands

Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.) if the extension would result in a violation of federal

law, or any State rule or regulation requiring approval by the Secretary of the Interior pursuant to Pub.L.95-

625 (16 U.S.C. 471 (i)).

d. This act shall not affect any administrative consent order issued by the Department of Environmental

Protection in effect or issued during the period of the economic emergency, nor shall it be construed to

extend any approval in connection with a resource recovery facility as defined in section 2 of P.L.1985, c.38

(C.13:1E-137).

e. In the event that any permit extended pursuant to the "Permit Extension Act," P.L.1992, c.82 (C.40:55D-

130 et seq.) was based upon the connection to a sanitary sewer system, the permit's extension shall be

contingent upon the availability of sufficient capacity, on the part of the treatment facility, to accommodate

the development whose approval has been extended. If sufficient capacity is not available, those permit

holders whose permits have been extended shall have priority with regard to the further allocation of

gallonage over those permit holders who have not received approval of a hookup prior to the enactment of

the "Permit Extension Act." Priority regarding the distribution of further gallonage to any permit holder who

has received the extension of a permit pursuant to the "Permit Extension Act" shall be allocated in order of

the granting of the original approval of the connection.

f. This act shall not extend any approval issued under the "Municipal Land Use Law ," P.L.1975, c.291

(C.40:55D-1 et seq.) in connection with an application for development involving a residential use where,

subsequent to the expiration of the permit but prior to January 1, 1992, an amendment has been adopted to

the master plan and the zoning ordinance to rezone the property to industrial or commercial use when the

permit was issued for residential use.

g. In the case of any approval issued under the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et

seq.) which is extended pursuant to P.L.1992, c.82 (C.40:55D-130 et seq.), a municipality may disapprove

such an extension of approval for the period beyond January 1, 1996, if, subsequent to January 1, 1992, but

prior to July 1, 1994, an amendment has been adopted to the master plan and the zoning ordinance to change

the use of the property for which the approval was issued to a use different from the use for which the

approval was issued. A municipal disapproval pursuant to this subsection shall be made prior to June 30,

1995.

h. Nothing in this act shall be deemed to extend any permit issued pursuant to the "Coastal Area Facility

Review Act," P.L.1973, c.185 (C.13:19-1 et seq.) that expires after December 31, 1994 but prior to January

1, 1997, if the permit was issued for a development located in the coastal area, as defined pursuant to section

4 of P.L.1973, c.185 (C.13:19-4), between the mean high water line of any tidal waters or the landward limit

of a beach or dune, whichever is most landward, and a point 150 feet landward of the mean high water line

of any tidal waters or the landward limit of a beach or dune, whichever is most landward.

i. This act shall not affect the terms or expiration date of any stipulation of settlement that was made or

entered into during the economic emergency, provided that the stipulation of settlement involves a

development which received preliminary major subdivision approval prior to January 1, 1979 in a

municipality that has adopted a zoning change affecting the lot size and density of the development which is

the subject of the stipulation of settlement after the date of the preliminary or final subdivision approval of

that development, and provided further that the stipulation of settlement does not affect any housing

constructed or rehabilitated in fulfillment of a fair share housing plan adopted pursuant to P.L.1985, c.222

(C.52:27D-301 et al.).

NJ State Planning 1997 Municipal Land Use Law 93

L.1992,c.82,s.4; amended 1994,c.145,s.3; 1995,c.341,s.1.

40:55D-134. Extension of project exemption

5. a. (1) Except as otherwise provided in this section, nothing in this act shall have the effect of extending

any project exemption granted pursuant to subsection d. of section 4 of the "Freshwater Wetlands Protection

Act," P.L.1987, c.156 (C.13:9B-4).

(2) This act shall automatically extend any project exemption granted pursuant to subsection d. of section 4

of P.L.1987, c.156 (C.13:9B-4) from the requirements of section 16 of P.L.1987, c.156 to maintain a

transition area adjacent to freshwater wetlands, if the freshwater wetlands which would be affected by the

project are not freshwater wetlands of exceptional resource value.

b. Any person who may be eligible for an automatic extension pursuant to the provisions of subsection a. of

this section may submit an application to the Department of Environmental Protection and Energy for a

determination of whether the freshwater wetlands affected by the project are freshwater wetlands of

exceptional resource value as defined by the Department of Environmental Protection and Energy pursuant

to P.L.1987, c.156 and any rules and regulations adopted pursuant thereto. This application shall be limited

to a description of the location of the project by lot and block number and a delineation of the wetlands

affected by the project. If the Department of Environmental Protection and Energy does not make a

determination requested pursuant to this subsection within 90 days of receipt of the application therefor, the

freshwater wetlands shall be deemed to not be of exceptional resource value. The Office of Administrative

Law shall provide for expedited appeal by the applicant of any determination that the freshwater wetlands

affected by a project potentially eligible for an automatic extension pursuant to the provisions of subsection

a. of this section are classified as freshwater wetlands of exceptional resource value.

c. In the event the Department of Environmental Protection and Energy obtains additional information

clearly and convincingly demonstrating that a freshwater wetlands previously determined by the Department

of Environmental Protection and Energy or otherwise deemed to not be of exceptional resource value are

actually freshwater wetlands of exceptional resource value, the Department of Environmental Protection and

Energy may, within one year after the date of its original determination or the date on which the freshwater

wetlands were deemed not to be of exceptional resource value, reclassify the freshwater wetlands as a

freshwater wetlands of exceptional resource value, and require compliance with the requirements of section

16 of P.L.1987, c.156 to maintain a transition area adjacent to freshwater wetlands. This subsection shall not

apply to any project the actual construction of which has commenced at the time the Department of

Environmental Protection and Energy provides notice to the applicant that the previous wetlands resource

classification may be modified.

L.1992,c.82,s.5.

40:55D-135. Notice

6. State agencies shall, within 30 days after the effective date of this act, place a notice in the New Jersey

Register extending all approvals in conformance with this act.

L.1992,c.82,s.6.

40:55D-136. Liberal construction

7. The provisions of this act shall be liberally construed to effectuate the purposes of this act.

L.1992,c.82,s.7.