Ordinance No. 13-11

Introduced: May 13, 2013
Public Hearing: June 24, 2013
Status: Adopted

An ordinance of the Township of Vernon, County of Sussex, State of New Jersey to amend Chapter 330, Land Development of the Code of the Township of Vernon

BE IT ORDAINED by the Council of the Township of Vernon, Sussex County, New Jersey, as follows:

WHEREAS, the Vernon Township Land Use Board was requested to research the modification of an existing ordinance concerning Performance and Maintenance Guarantees for developments that require final site plan approvals; and

WHEREAS, the Land Use Board Engineer explained that performance and maintenance guarantees may be required for development projects, but no specific guidelines exist to explain what type of projects should be required to furnish a guarantee for the purpose of assuring the installation and maintenance of on-tract improvements; and

WHEREAS, the Land Use Board Engineer proposed to modify the Section 330-57 of the Township Code to specify that final major subdivisions that include public improvements and site plans which are deemed major development projects be required to furnish guarantees to assure the installation and maintenance of on-tract improvements. A major development project would be defined as a development project that has a disturbance area of 1 acre or more; and

WHEREAS, on February 9, 2011, by means of a motion, the Land Use Board favorably approved the recommendation to the Township Council to amend the Township Code Article II Section 330-5 and Article VI Section 330-57.

BE IT ORDAINED by the Mayor and Council of the Township of Vernon that Chapter 330, Land Development be amended as follows:

SECTION 1: Chapter 330, § 330-5—Definitions, be amended to include the following:

MAJOR DEVELOPMENT—Any development that provides for ultimately disturbing one or more acres of land. Disturbance includes the placement of impervious surface or exposure and/or movement of soil or bedrock or clearing, cutting, or removing of vegetation.

SECTION 2: Chapter 330, § 330-57—Guarantees required: surety; release be deleted and replaced with Chapter 330, § 330-57—Performance and Maintenance Guarantees as follows:

Chapter 330, § 330-57—Performance and Maintenance Guarantees

  1. Before recording of final subdivision plats or as a condition of a final site plan approval for a major development project, the governing body shall require and accept guarantees in accordance with the standards of this chapter for the purpose of assuring the installation and maintenance of on-tract improvements.
  2. The furnishing of a performance guarantee shall be required for all subdivisions which include public improvements or major development projects which will have a disturbance area of one (1) acre or more. The performance guarantee shall be in favor of the Township in an amount not to exceed 120% of the cost of installation of improvements which the approving authority may deem necessary or appropriate. Said improvements shall include but not be limited to 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, N.J.S.A. 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 itemized cost estimate for the improvements covered by the performance guarantee shall be prepared by the Township Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4.
  3. A maintenance guarantee shall be posted with the governing body for improvements constructed as part of subdivision or development projects which are deemed public improvements or are in the interest of the governing body to assure proper post-construction maintenance. Said maintenance guarantee shall be 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 Township Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4.
  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 Township for such utilities or improvements.
  5. 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 Township Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.
  6. 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 Township for the reasonable cost of the improvements not completed or corrected and the Township may, either prior to or after 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, N.J.S.A. 40A:11-1 et seq.
  7. Inspection and list of uncompleted or unsatisfactory improvements.
    1. Upon substantial completion of all required street improvements (except for the roadway surface course paving) and appurtenant utility improvements, the obligor may request of the governing body in writing (by certified mail addressed in care of the Township Clerk) that the Township Engineer prepare an updated itemized cost estimate and that the performance guarantee be appended to include only the uncompleted or unsatisfactory completed improvements that exist at the time of the request. If such a request is made, the obligor shall send a copy of the request to the Township Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Township Engineer shall inspect all improvements covered by the obligor’s request and shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor’s request.
    2. The list prepared by the Township 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. The report prepared by the Township 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 that has been posted.
  8. Approval or rejection of improvements.
    1. The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Township Engineer, or reject any or all of these improvements upon the establishment in the resolution of cause for rejection. The governing body shall also 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 Township Engineer. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township 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 performance guarantee posted may be retained to ensure completion of all acceptability of all improvements.
    2. If the Township Engineer fails to send or provide the list and report as requested by the obligor within 45 days from receipt of the request, the obligor may apply to court in a summary manner for an order compelling the Township 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. If the governing body fails to approve or reject the improvements determined by the Township 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 Township 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 Township 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 Township 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.
  9. 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.
  10. 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 Township Engineer.
  11. The obligor shall reimburse the Township for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements; provided that the Township 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 N.J.S.A. 40:55D-53.4. For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Township Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees. For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Township Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Township Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.
  12. In the event that final approval is by stages or sections of development, the provisions of this section shall be applied by stage or section.
  13. To the extent that any of the improvements have been dedicated to the Township on the subdivision plat or site plan, the 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 Township Engineer.

SECTION 3: Effective Date. This ordinance shall take effect after publication and passage according to law.

SECTION 4: Severability. If the provisions of any article, section, subsection, paragraph, subdivision, or clause of this ordinance shall be judged invalid by a court of competent jurisdiction, such order of judgment shall not affect or invalidate the remainder of any section, subsection, paragraph, subdivision, or clause of this ordinance.