Township of Egg Harbor, NJ Article IV General Regulations

§ 225-7.1 Certificates and permits.

[Added 8-26-1998 by Ord. No. 29-1998]

A. Certification of foundation. Upon completion of the foundation of any building authorized by any permit and prior to approval of said foundation, the holder of such permit shall provide the Construction Official with a survey prepared by a New Jersey licensed surveyor which shows the top of block elevation and the distance of the foundation from each property line. No further construction of the structure is to commence until such time as the elevation and location of the foundation have been approved by the Construction Official, or his designee.

B. As-built certification. Upon completion of the erection or alteration of any building authorized by any permit and prior to occupancy or use, the holder of such permit shall notify the Construction Official of such completion. Permit holders completing new construction shall submit to the Zoning Officer certification from a licensed New Jersey licensed surveyor demonstrating compliance with approved finished floor and site grading, height limitations, front, side and rear yard setbacks and building coverage as set forth by this chapter, or any modification of these limitations by variance granted by the Planning Board or Zoning Board of Adjustment.

§ 225-8 Continuation of existing uses.

If at the time of the enactment of this chapter any building is being used or any building is being constructed or altered and is completed within three months thereafter, in a manner or for a purpose which does not conform to the requirements of this chapter, but which is not prohibited by any other existing ordinance of the Township, such use, manner or purpose may be continued, nor shall any change of the title or of right to possession affect such continuation of an existing use.

§ 225-9 Compliance required.

No lot hereafter may be used and no building or part thereof hereafter may be erected, constructed, reconstructed, moved, extended, converted, altered, maintained or used except in conformity with the provisions of this chapter.

§ 225-10 Restoration of unsafe structures.

[Amended 12-8-1982 by Ord. No. 71-1982]

Nothing in this chapter shall prevent the strengthening or restoring to a safe or lawful condition any part of any building declared unsafe or unlawful by the Zoning Officer or other duly authorized Township officials.

§ 225-11 Yards and lot width.

A. No yard or other open space provided about any building for the purpose of complying with the provisions of this chapter shall be considered as providing a yard or open space for any other building.

B. All yard areas facing on a public street shall be considered as front yards and shall conform to the minimum front yard requirements for the particular zone.

C. Where a building lot has frontage upon a street, which on the Master Plan or Official Map of the Township of Egg Harbor or in the official plans of Atlantic County or of the State of New Jersey is contemplated for right-of-way widening, the required front yard shall be measured from such proposed future right-of-way.

D. The width of any lot measured at the front property line coexistent with a street line shall be no less than 2/3 of the minimum required lot width as set forth in the schedule.

E. Every part of a required yard shall be open and unobstructed from its lowest level to the sky, except for the ordinary projections allowed by the State Uniform Construction Code, including but not limited to sills, belt courses, chimneys, flues, buttresses, ornamental features and eaves; provided, however, that none of the aforesaid projections shall project into the minimum required yards more than 24 inches, unless otherwise permitted by this chapter. Unroofed entrance porches or terraces, which do not rise above the height of the floor level of the ground floor, may extend into any yard, provided that the total area of all such porches, which extend into such yards, does not exceed 1,000 square feet.

[Added 6-8-1994 by Ord. No. 25-1994]

§ 225-12 Accessory buildings.

A. An accessory building attached to the principal building shall comply in all respects with the yard requirements of this chapter in respect to the principal building. Detached accessory buildings shall be located to the rear of the front building line of the principal building and shall conform to the yard requirements in respect to accessory buildings as set forth in the schedule.

B. No garage that is an accessory use to a residential building in any zone shall be used for living quarters wherein said garage is detached from the main living quarters of the main house.[1]

[1] Editor's Note: Former Subsection C, which pertained to the keeping of horses, cows and sheep and which immediately followed this subsection, was redesignated 2-24-1993 by Ord. No. 9-1993 as § 225-17C.

§ 225-13 Lot development.

A. No lot shall have erected upon it more than one principal single-family residential building. Within the Pinelands Area, no more than one principal use shall be located on any one lot, except for forestry, agriculture, fish and wildlife management, wetlands management, and recreational development on agricultural lands. Outside the Pinelands Area, multiple permitted principal uses are permitted in the commercial and industrial zoning districts as long as approval is granted in accordance with Article XI of this chapter.

[Amended 7-14-1993 by Ord. No. 30-1993; 6-20-2012 by Ord. No. 27-2012; 12-18-2013 by Ord. No. 44-2013]

B. (Reserved)[1]

[1] Editor's Note: Former Subsection B, concerning exemption from area and lot dimension requirements for preexisting, undersize lots, was repealed 4-24-2002 by Ord. No. 20-2002.

C. The area of a lot shall include only land areas above mean high tide sea level. Further, no land area within a public right-of-way, regardless of deed description, shall be included as part of the lot area.

D. All land classified as floodplain and/or tidelands as shown on United States Department of Agriculture Soils Surveys of Egg Harbor and/or Department of Environmental Protection Water Policy Maps shall require Environmental Protection Agency development approval prior to issuance of a building permit for affected lands.

E. All private schools, as defined herein by § 225-3, shall be located on a lot of no less than five acres and shall have direct access to a street classified as other than a local street in the adopted Master Plan of Egg Harbor Township. Further, all private schools shall comply, where applicable, to the New Jersey Department of Education standards for public schools.

[Added 5-23-1984 by Ord. No. 17-1984]

F. Prior to the issuance of a permit for the erection of any building or structure, the permit applicant must demonstrate to the satisfaction of the Construction Official that the lot abuts a public street which meets the requirements of N.J.S.A. 40:55D-35. In addition, such street shall have been certified to be suitably improved in accordance with § 94-46 of the Egg Harbor Township Code for a distance which corresponds to the required minimum lot width for the zone in which the lot is located, or to the driveway for the proposed structure, whichever is greater. In lieu of the street improvement, the applicant may post a performance guaranty in accordance with N.J.S.A. 40:55D-35 to ensure the required road improvements.

[Added 5-10-2000 by Ord. No. 16-2000]

§ 225-14 Signs.

A. The limitations on signs as set forth for the various zones by this chapter shall not apply to any sign or directional device erected by the federal, state, county or Township government, or agency thereof, nor to any "no trespassing" sign erected in accordance with the applicable statutes of the State of New Jersey.

B. The limitations on sign location and area as set forth by this chapter for the business and light industry zones shall not apply to parking lot markers, directional signs and entrance and exit signs which are erected on the premises, provided that each such sign does not exceed two square feet in area and does not contain any advertising of the use on the premises, and further provided that the number and location of said signs are approved by the Planning Board.

§ 225-14.1 Fences.

[Added 10-11-2006 by Ord. No. 51-2006]

The following provisions shall not apply to the required screening of storage or similar areas for business or industrial uses:

A. The installation of any fence, except for a living hedge, shall require the submission of an application and procurement of a permit from the Zoning Officer in accordance with the requirements of this section.

B. All applications for a fence permit shall be accompanied by a drawing of the proposed fence design which meets the following standards and provides the following information:

(1) The drawing shall be neatly and accurately drawn at an appropriate scale of not more than 20 feet to the inch.

(2) The drawing shall show all dimensions and shall be clearly labeled.

(3) The drawing shall include the location of any and all underground utilities on the affected property.

C. Fences may be erected, altered or reconstructed to a height not to exceed four feet above ground level when located within 25 feet of a right-of-way. When located more than 25 feet from a right-of-way, fences shall not exceed a height of six feet.

D. Fences located within 25 feet of a right-of-way shall be constructed in such a manner as to provide at least fifty-percent open space.

E. Fences on lagoon properties shall be constructed with fifty-percent open space for a minimum distance of at least 15 feet from any bulkhead or rear property line along the side line or side yard of any residential lot so as not to obstruct the view of the lagoon. The entire rear line or rear yard fence shall also be fifty-percent open. All living fences and hedges shall adhere to the above-stated fifteen-foot side line regulations and shall not be constructed (planted) in a continuous manner.

F. The foregoing restrictions shall not be applied so as to prevent the erection of an open wire fence not exceeding eight feet above ground level anywhere within a public park, public playground, school premises or commercial zone.

G. All fences must be erected within the property lines, and no fences shall be erected so as to encroach upon adjacent properties or public rights-of-way. Fence gates shall be designed to prevent the open swing of the gate from encroaching upon adjacent properties or public rights-of-way.

H. All fences must be constructed with the face, or finished side, away from the property and the structural side toward the interior of the lot(s) on which it is erected.

I. All fencing shall be in conformance with the requirements for visibility at intersections listed in § 225-15 of this chapter.

J. Living fences, hedges or screen plantings shall be planted no closer than three feet to a property line and shall be maintained in a neatly trimmed condition on the property so planted.

K. All fences and walls shall be maintained in a safe, sound and upright condition.

L. If the Zoning Officer, upon inspection, determines that any fence or portion thereof is not being maintained in a safe, sound or upright condition, he shall notify the owner of such fence, in writing, of his findings and state briefly the reasons for such findings and order such fence repaired or removed within 30 days of the date of the written notice.

M. Fencing may not be erected in any yard if it acts to inhibit access to Township fire, police and emergency medical services.

N. These restrictions shall not be applied so as to restrict the erection of a wall for the purpose of retaining earth.

O. These restrictions shall not be applied so as to restrict the erection, alteration or reconstruction of fences used in connection with farms and farm operations except insofar as such fences might affect the public safety.

P. Temporary fences such as snow fences, expandable fences, collapsible fences, canvas and cloth fences may be permitted upon a determination by the Zoning Officer that such fencing is necessary to inhibit the dispersal of airborne material during construction activity.

Q. The following fences are prohibited in all residential districts except when constructed as per Subsection O above:

(1) Barbed wire.

(2) Razor wire.

(3) Electric.

(4) Other similar type fences.

R. Adequate fences and other safety devices must be provided as may be required. Fences, when used to enclose public utility facilities, shall be built in accordance with the applicable requirements of the New Jersey Board of Public Utilities Commissioners and the National Electrical Code in effect at the time of construction, and such fences may not exceed a maximum height of 15 feet above grade.

[Added 7-21-2021 by Ord. No. 28-2021]

§ 225-15 Sight triangles.

At the intersection or interception of two or more streets, no new hedge, fence or wall, other than a single post or tree not exceeding one square foot in cross-section area, which is higher than three feet above curb level, nor any obstruction to vision, shall be permitted in the triangular area formed by the intersecting street lines and a line joining points each 25 feet distant from said intersection along said street lines.

§ 225-16 Outdoor selling or storage.

Commercial uses in the business zones may display goods for sales purposes or store goods for sale on the premises outside of the principal structure in which such use is carried on, provided that such outdoor selling or storage areas shall not encroach upon any of the required yard areas or the required off-street parking areas for the zone in which located, and further provided that the area set aside for such outdoor selling or storage shall not exceed an area equal to the gross area of the ground floor of the principal building. In calculation of the percentage area, the area of such outdoor selling or storage areas shall be included in the same manner as the area of the principal building. The area to be used for any such outdoor selling or storage areas shall be appropriately set forth at the time of application for a zoning permit. Any subsequent establishment or relocation of such areas shall be subject to the issuance of a supplementary zoning permit.

§ 225-17 Keeping of horses.

A. No horse training corral or barnyard for the keeping or training of riding horses for hire shall be permitted to be located or established within 250 feet of any existing private dwelling not located on the lot used for the aforesaid purposes, the further provided that no more than two horses per acre shall be pastured or stabled at the premises.

B. Keeping of horses shall be permitted as an accessory use in the RA, R-1, R-1 (PUD) and R-2 Residential Districts. No more than two horses per acre shall be permitted on such parcel of land, and further provided that no horses shall be permitted on a lot of less than 20,000 square feet.

C. The keeping of horses, cows and sheep on a lot whose principal use is a single-family dwelling shall be permitted in any zone, provided that the lot area is 40,000 square feet or more, except as permitted in § 225-17B, and that no more than two such animals are kept at the premises and that a barn or shed to house such animals is not less than 50 feet from any lot line.

[Added 2-24-1993 by Ord. No. 9-1993]

§ 225-18 Prohibited uses.

The following uses and activities are specifically prohibited in all zones of Egg Harbor Township:

A. The use of a lot in any zone primarily for the storage of bulk oil or gasoline above the ground.

B. The business of selling used lumber, building materials and defunct motor vehicles or parts thereof; the storage of used lumber and building materials.

[Amended 12-23-1996 by Ord. No. 42-1996]

C. Junkyards, automobile wrecking yards or disassembly yards or the sorting or baling of scrap metal, paper, rags or other scrap material.

D. Any use which emits excessive or objectionable amounts of dust, fumes, noise, odor, smoke, vibration or waste products.

E. Gravel pits or sand mines.

F. Dismantling of motor vehicles and/or machinery by burning.

G. Piggeries or the business of raising pigs.

H. The manufacture of explosives, volatile chemicals or any uses which would produce similar hazard or nuisance, such as but not limited to the following industrial uses:

	Abattoir
	Acetylene gas manufacture and/or storage
	Acid manufacture (hydrochloric, nitric, acrid, sulfuric, sulfonic, carbolic)
	Ammonia, bleaching powder or chlorine manufacture
	Arsenal
	Asphalt manufacture or refining
	Blast furnace
	Blooming mill
	Celluloid manufacture
	Coal distillation
	Coke ovens
	Creosote treatment or manufacture
	Dead animal and offal reduction
	Distillation of bones, coal, petroleum, refuse grain or wood
	Distillation of tar
	Explosives, fireworks and gun powder manufacture or storage
	Fat rendering
	Fertilizer manufacture
	Forge plant
	Incineration, reduction, storage or dumping of slaughterhouse refuse, rancid fats, garbage, dead animals or offal
	Lime, gypsum, plaster of paris manufacture
	Oil cloth or linoleum manufacture
	Ore reduction
	Petroleum or kerosene refining, distillation or derivation of by products and/or storage
	Potash works
	Rolling mill
	Rubber treatment or reclaiming plant
	Signs or similar devices which move or have moving parts or moving lights or any light or part simulating movement
	Steel furnace
	Stockyards
	Use of any premises or building in such a manner that the health, morals, safety or welfare of the community may be endangered

§ 225-19 Topsoil.

No persons, firm or corporation shall strip, excavate or otherwise remove topsoil for sale or for use other than on the premises from which the same shall be taken except in connection with the construction or alteration of a building on such premises and excavating or grading incidental thereto.

§ 225-20 Temporary structures.

[Amended 11-2-2022 by Ord. No. 40-2022]

A. No motor vehicle truck bodies, bus bodies or other temporary structures shall be placed on any lot or lots in any zone for any purpose whatsoever except during the period of construction of a principal building on the same lot or lots.

B. All basketball hoops and backboards in front yard areas shall be permitted on the front of the building or on a pole on the driveway only. Permanent basketball poles shall be located no closer than 10 feet to any property line.

C. No sporting equipment of any type is permitted to be within the public streets, highways and/or rights-of-way within the Township.

§ 225-21 Expiration of variances. [1]

[Added 5-28-2008 by Ord. No. 18-2008]

Any variance from the terms of this chapter hereafter granted permitting the erection or alteration of any structure or structures, or permitting a specified use of any premises, shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance, or unless such permitted use has actually been commenced, within 18 months from the date of entry of the judgment or determination of the Board; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Board to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.

[1] Editor's Note: Former § 225-21, Letters of interpretation and zoning fees, added 8-13-1997 by Ord. No. 32-1997, as amended 10-22-1997 by Ord. No. 47-1997, was repealed 11-23-1999 by Ord. No. 46-1999.

§ 225-22 Public utility installations.

[Amended 2-24-1993 by Ord. No. 9-1993; 7-14-1993 by Ord. No. 30-1993]

Public utility installations, public services, distribution lines and mains, and substations less than 400 square feet in floor area, but not including equipment material storage yards and maintenance facilities, shall be permitted uses in all zoning districts, subject to applicable state and federal regulations.

§ 225-23 Applicability to Township.

Regardless of whether the Township or any duly constituted board, agency or department thereof is acting in or pursuant to the performance of a governmental function carrying out a legislative mandate or in the exercise of its private right as a corporate body, any municipally owned, operated or controlled building, structure, facility or use, either existing or proposed, shall be permitted in any class of zone, it being the intention that whatever the Township may be authorized to do shall constitute a function of government and that whenever the Township shall act pursuant to granted authority, it acts as government and not as a private entrepreneur.

§ 225-24 Performance standards.

[Amended 2-24-1993 by Ord. No. 9-1993]

Uses shall comply with performance standards set forth in Article X of this chapter and all relevant design and performance standards set forth in Chapter 94 of the Township Code.

§ 225-25 Site plan requirements.

[Amended 12-8-1982 by Ord. No. 71-1982; 2-23-1983 by Ord. No. 5-1983; 10-8-1986 by Ord. No. 39-1986; 2-24-1993 by Ord. No. 9-1993]

A. A site plan shall be required in accordance with the procedures, conditions and regulations as set forth in Article XI of this chapter for all buildings except single-family dwellings, two-family dwellings, farm buildings or for such accessory uses as a private garage, private swimming pool or toolhouse. A site plan shall be required for the land disturbance of any area in excess of 5,000 square feet for the purpose of excavation, soil removal, site clearing or filling of land contemplated for development, excluding agricultural purposes. Additions to residential uses for professional home offices shall require site plan approval. All volunteer fire companies, ambulance and rescue squads of the Township of Egg Harbor shall not have to satisfy site plan requirements.

B. No development involving the use of Pinelands development credits shall be approved until the developer has provided the Commission and the approving authority with evidence of his ownership and redemption of the requisite Pinelands development credits; provided, however, that the approving authority may grant general development plan, preliminary subdivision or site plan approval conditioned upon such evidence being presented as a prerequisite to final subdivision or site plan approval. For such a final subdivision or site plan, the developer shall provide evidence of Pinelands development credit ownership and redemption to secure the same proportion of lots or residential units as was approved for Pinelands development credit use in the preliminary approval or, as appropriate, the general development plan. Notification of any such development approval shall be made to the Pinelands Commission pursuant to § 225-53.4 and to the New Jersey Pinelands Development Credit Bank in accordance with N.J.A.C. 3:42-3. Redemption of the requisite Pinelands development credits shall occur in accordance with N.J.A.C. 3:42-3.6, prior to the memorialization of the resolution granting final subdivision or site plan approval or, if no such approval is required, prior to the issuance of any construction permits.

[Amended 5-23-2001 by Ord. No. 17-2001]

§ 225-25.1 Affordable housing development fees.

[Added 3-14-2007 by Ord. No. 11-2007; amended 12-22-2008 by Ord. No. 61-2008]

A. Purpose.

(1) In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.

(2) Pursuant to P.L. 2008, c. 46 section 8 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.

(3) This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32 through 38. Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.

B. Basic requirements.

(1) The Township of Egg Harbor shall not impose development fees on any applicant pursuant to this section until COAH or a court has approved the Development Fee Ordinance pursuant to N.J.A.C. 5:96-5.1, except that residential fees may be collected pursuant to the previously approved fee ordinance until such time as this section takes effect, and nonresidential fees shall be collected in accordance with the Statewide Non-Residential Development Fee Act, N.J.S.A. 40:55D-8.1 et seq.

(2) The Township of Egg Harbor shall not spend development fees until COAH or a court has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.

C. Definitions. The following terms, as used in this section, shall have the following meanings:

AFFORDABLE HOUSING DEVELOPMENT

A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a one-hundred-percent affordable development.

COAH or the COUNCIL

The New Jersey Council on Affordable Housing established under the Act which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the state.

DEVELOPER

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 FEE

Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.

EQUALIZED ASSESSED VALUE

The assessed value of a property divided by the current average ratio of assessed-to-true value for the municipality in which the property is situated, as determined in accordance with sections 1, 5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).

GREEN BUILDING STRATEGIES

Those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.

D. Residential development fees.

(1) Imposed fees.

(a) All residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1 1/2% of the equalized assessed value for residential development, provided no increased density is permitted.

(b) When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of up to 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.

(c) Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1 1/2% of the equalized assessed value on the first two units; and the specified higher percentage up to 6% of the equalized assessed value for the two additional units, provided zoning on the site has not changed during the two-year period preceding the filing of such a variance application.

(2) Eligible exactions, ineligible exactions and exemptions for residential development.

(a) Affordable housing developments and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.

(b) Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval, or said approval expires without an extension granted by the respective review board. A substantial change to the general terms and conditions for which preliminary approval was granted includes but is not limited to use; layout of streets, curbs and sidewalks, lot size, yard dimensions and off-tract improvements; and, in the case of site plan, any conditions peculiar to site plan approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.

(c) Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, is demolished and replaced, or is expanded, if the expansion is not otherwise exempt from the development fee requirement. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.

(d) Developers of one single-family dwelling unit demolished and replaced as a result of a natural disaster or as a result of an on-site residential demolition permit shall be exempt from paying a development fee.

(e) The expansion or addition to a single-family dwelling, including in-law apartments shall be exempt from paying a development fee.

E. Nonresidential development fees.

(1) Imposed fees.

(a) Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.

(b) Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2 1/2% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.

(c) Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2 1/2% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e. land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.

(2) Eligible exactions, ineligible exactions and exemptions for nonresidential development.

(a) The nonresidential portion of a mixed-use inclusionary or market-rate development shall be subject to the development fee of 2 1/2%, unless otherwise exempted below.

(b) The development fee of 2 1/2% shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.

(c) Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption." Any exemption claimed by a developer shall be substantiated by that developer.

(d) A developer of a nonresidential development exempted from the nonresidential development fee pursuant to P.L. 2008, c. 46, shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.

(e) If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Township of Egg Harbor as a lien against the real property of the owner.

F. Collection procedures.

(1) Upon the granting of a preliminary, final or other applicable approval for a development, the applicable approving authority shall direct its staff to notify the construction official responsible for the issuance of a building permit.

(2) For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption" to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The construction official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.

(3) The construction official responsible for the issuance of a building permit shall notify the local Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.

(4) Within 90 days of receipt of that notice, the Municipal Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.

(5) The construction official responsible for the issuance of a final certificate of occupancy notifies the local Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.

(6) Within 10 business days of a request for the scheduling of a final inspection, the Municipal Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.

(7) Should the Township of Egg Harbor fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in subsection b. of section 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).

(8) Fifty percent of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at building permit and that determined at issuance of certificate of occupancy.

(9) Appeal of development fees.

(a) A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by Egg Harbor Township. Appeals from a determination of the Board may be made to the Tax Court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

(b) A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by Egg Harbor Township. Appeals from a determination of the Director may be made to the Tax Court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

G. Affordable Housing Trust Fund.

(1) There is hereby created a separate, interest-bearing housing trust fund to be maintained by the chief financial officer of the Township of Egg Harbor for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.

(2) The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

(a) Payments in lieu of on-site construction of affordable units;

(b) Developer-contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;

(c) Rental income from municipally operated units;

(d) Repayments from affordable housing program loans;

(e) Recapture funds;

(f) Proceeds from the sale of affordable units; and

(g) Any other funds collected in connection with Township of Egg Harbor's affordable housing program.

(3) Within seven days from the opening of the trust fund account, the Township of Egg Harbor shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, Sun National Bank, and COAH to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).

(4) All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH or the court.

H. Use of funds.

(1) The expenditure of all funds shall conform to a spending plan approved by COAH or the court. Funds deposited in the housing trust fund may be used for any activity approved by COAH or the court to address the Township of Egg Harbor's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to, preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.

(2) Funds shall not be expended to reimburse the Township of Egg Harbor for past housing activities.

(3) At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.

(a) Affordability assistance programs may include down payment assistance, security deposit assistance, low-interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs.

(b) Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner may entitle Egg Harbor Township to bonus credits pursuant to N.J.A.C. 5:97-3.7.

(c) Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.

(4) The Township of Egg Harbor may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:96-18.

(5) No more than 20% of all revenues collected from development fees may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the Affordable Housing Trust Fund.

I. Monitoring. The Township of Egg Harbor shall complete and return to COAH all monitoring forms included in monitoring requirements related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier-free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with Egg Harbor Township's housing program, as well as to the expenditure of revenues and implementation of the plan approved by the court. All monitoring reports shall be completed on forms designed by COAH.

J. Ongoing collection of fees. The ability for Egg Harbor Township to impose, collect and expend development fees shall expire with its substantive certification or judgment of compliance unless the Township of Egg Harbor has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, or brought a declaratory relief action in Court pursuant to N.J.S.A. 52:27D-313. If Egg Harbor Township fails to renew its ability to impose and collect development fees prior to the expiration of a judgment of compliance, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Township of Egg Harbor shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall Egg Harbor Township retroactively impose a development fee on such a development. Egg Harbor Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance.