§ 184-71. Off-tract improvements., Article IX. Site Plan and Subdivision Review Procedures, Part 1. Land Use Procedures, Chapter 184. Land Use, Part II. General Legislation, Code of Ordinances, Fanwood

Determination of required improvements. The Board shall determine the nature of off-tract improvements to be required. Such determination shall not be inconsistent with the Borough Master Plan circulation and utility elements, and may include street and related improvements, water, sewer and drainage facilities, and easements thereof.

Determination of total cost of improvements. The cost of installation of the required off-tract improvements shall be determined by the Board with advice of appropriate Borough agencies and officials.

General criteria in determining proportion of costs to be paid by applicant. The proportion of the total cost to be paid by the applicant for off-tract improvements shall be determined by the Board, with the assistance of the appropriate Borough agencies, based on the following criteria:

(1)

The total cost of the off-tract improvements;

(2)

The increase in market values of the property affected and any other benefits conferred;

(3)

The needs created by the application;

(4)

Population and land use projections for the general area of the applicant's property and other areas to be served by the off-tract improvements;

(5)

The estimated time of construction of the off-tract improvements;

(6)

The condition and periods of usefulness of the off-tract improvements, which periods may be based upon the criteria of N.J.S.A. 40A:2-22; and,

(7)

Any other reasonable criteria the Board feels is necessary to protect the public health, safety and welfare.

Criteria in determining proportion of cost to be paid by applicant for specific improvements. In addition to and notwithstanding the provisions of Subsection C above, the following criteria may be considered in determining the proportion of the total cost to be paid by the applicant for the following specific off-tract improvements:

(1)

Proportion of costs for street pavement, curbs, sidewalks, shade trees, streetlights, street signs, traffic lights and related improvements and easements therefor may also be based upon the anticipated increase of traffic generated by the development. In determining such traffic increase, the Board may consider traffic counts, existing and projected traffic patterns, quality of roads and sidewalks in the area and other factors related to the need created by the development and the anticipated benefit thereto.

(2)

Proportion of costs for drainage facilities may also be based upon the drainage conditions created by or affected by a particular development, considering:

(a)

The percentage relationship between the acreage of the development and the acreage of the total drainage basin;

(b)

The use of the site and the amount of area to be covered by impervious surfaces on the site; and

(c)

The use, condition or status of the remaining area of the drainage basin.

(3)

Proportion of costs for water supply and distribution facilities may also be based upon the additional facilities necessitated by the total anticipated water use requirements of the development and other properties in the general area benefiting therefrom.

(4)

Proportion of costs for sanitary sewer facilities may also be based upon the proportion that the total anticipated volume of sewage effluent of the development and other properties connected to the new facility bears to the existing capacity of existing sewerage facilities. The calculation shall include the lines and other appurtenances leading to and servicing the development property. Consideration may also be given to the types of effluent and particular problems requiring special equipment or added costs for treatment. In the event that the applicant's property shall be permitted to be connected to existing sewer facilities, the applicant shall pay a charge or be assessed in accordance with law.

Manner of implementation. After the estimated total cost of construction and the application's proportion of the total cost has been determined, the Governing Body shall determine whether the off-tract improvement is to be implemented by the Borough as a general or local improvement, or by the applicant under a formula providing for partial reimbursement by the Borough for benefits to properties other than the subdivision or site plan.

Deposit for improvements. When the manner of implementation has been determined by the Governing Body, the applicant may be required to provide a cash deposit or other deposit acceptable to the Borough, in accordance with the following:

(1)

If the improvement is to be constructed by the Borough as a general improvement, the applicant shall be required to deposit an amount equal to the difference between the total cost of the improvement and the estimated amount, if less than the total cost, that all properties which are to be serviced by the improvement, including the subject property, will be specifically benefited by the improvement.

(2)

If the improvement is to be constructed by the Borough as a local improvement, the applicant shall be required to deposit an amount equal to the amount specified in Subsection F(1), plus the estimated amount that the subject property will be specifically benefited by the improvement.

(3)

If the improvement is to be constructed by the applicant, the applicant shall be required to deposit an amount equal to the estimated cost of the improvement, less an offset for benefits to properties other than the subject property.

Payment for applicant's share of the cost of improvement. The applicant's proportion of the total cost of off-tract improvements shall be paid by the applicant to the Borough Treasurer, who shall provide a suitable depository therefore, and such funds shall be used only for the off-tract improvements for which they are deposited, or for other improvements serving the same purpose. In the event that the amount of the deposit pursuant to Subsection F above is less than the applicant's proportion of the total cost determined pursuant to Subsections C and D above, then the applicant shall be required to pay said proportion. In the event that the amount of the deposit pursuant to Subsection F above is more than the applicant's proportion of the total cost determined pursuant to Subsections C and D above, then the Borough shall reimburse the applicant, or his or her successors or assigns, for the difference between the deposit and the applicant's proportion.

Refund of payments for failure of Borough to make improvements. If after a period of 10 years from the date of payment by an applicant for off-tract improvements to be constructed by the Borough, construction of such off-tract improvements has not been initiated, the Borough shall refund any and all deposits made by the applicant for such improvements, together with the accumulated interest or other income earned on the deposit, if any.

Dispute of amount of applicant's contribution. If the applicant and the Board cannot agree on the total cost or the applicant's proportion of the total cost of the off-tract improvement, or on the determination made by the officer or Board charged with the duty of making assessments as to special benefits, and if the off-tract improvement is to be constructed as a local improvement, no approval shall be granted for the application. Where a developer pays the amount determined as his or her proportion of the total cost of the improvement under protest, he or she shall institute legal action within one year of such payment in order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount.

Assessments of properties. Upon receipt from the applicant of his or her proportion of the total cost of the off-tract improvement, the Borough may adopt a local improvement assessment ordinance for the purpose of construction of the off-tract improvements based upon the actual cost thereof. Any portion of the cost of the improvements not defrayed by a deposit by the applicant may be assessed by the Borough against any property owners who benefit from the improvement. Any assessments made against the applicant or his or her successors or assigns for benefits conferred shall be first offset by a credit for the payment made by the applicant pursuant to Subsection G above. The applicant or his or her successors or assigns shall not be liable for any part of any assessment for such improvements unless the assessment exceeds the credit for payment previously made, and then only to the extent of the deficiency.

Credit for work performed. In the event that the applicant, with the Borough's consent, decides to install and construct the off-tract improvement, or any portion thereof, the certified cost shall be treated as a credit against any future assessment for that particular off-tract improvement or portion thereof constructed by the Borough in the same manner as if the applicant had made a payment pursuant to Subsection G above.

Installation of improvements by applicant. At the option of the Borough, and with the consent of the applicant, the Borough may enter into a contract with the applicant providing for the construction of off-tract improvements by the applicant upon contribution by the Borough of the remaining unallocated portion of the cost of the off-tract improvement. In the event that the Borough so elects to contribute to the cost and expense of installation of the off-site improvements by the applicant, the portion contributed by the Borough shall be subject to possible certification and assessment as a local improvement against benefiting property owners in the manner provided by law, if applicable.

Compliance with design criteria. Should the applicant and the Borough enter into a contract for the construction and erection of the off-tract improvement to be done by the applicant, he or she shall observe all requirements and principles of this chapter in the design of such improvements.