Township of Hanover, NJ
Morris County
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Table of Contents
Table of Contents
[Amended 8-14-1986 by Ord. No. 23-86]
[Amended 5-8-2014 by Ord. No. 17-14]
A. 
All fees as hereinafter required shall be payable to:
(1) 
The Secretary of the Planning Board or Board of Adjustment in the case of an application to either board;
(2) 
The Zoning Officer in the case of an application for a zoning permit or a site plan exemption;
(3) 
The Township Engineer in the case of an application for a tree permit; or
(4) 
The Township Clerk in the case of an application or appeal to the Township Committee.
B. 
All fees shall be payable at the time of filing any application for development. All permits, determinations, resolutions or certificates of approval are subject to the payment of all fees provided for in this chapter, and no approval shall be given by the approving authority until proof has been submitted to them that the requisite fees have, in fact, been paid. Furthermore, the applicant must submit proof that no taxes or assessments for local improvements are due or delinquent on the property before the approving authority may act on his application.
There is hereby established in connection with the various applications for development and other matters which are the subject of this chapter the following schedule of fees. Every applicant for development shall file with his application a filing fee as indicated in the following schedule under "Filing fees," in addition to technical review fees as indicated in the following schedule under "Technical review fees."
A. 
Filing fees.
[Amended 3-26-1987 by Ord. No. 2-87; 7-13-1995 by Ord. No. 18-95; 12-22-2008 by Ord. No. 32-08]
(1) 
An application to the Planning Board or Zoning Board of Adjustment for any application for development or other matter to be decided by said boards shall be accompanied by a filing fee, which shall be used to defray the administrative costs of processing the application as follows:
(a) 
Concept plan/informal review of development proposal: $100. Fee to be credited against the application fee for a subsequent formal application for the same property if such application is filed within one year of hearing on the concept plan.
(b) 
Minor subdivision:
[1] 
If limited to lot line relocation only, with no additional lots created: $200, plus $50 for each lot in the subdivision.
[2] 
All others: $600, plus $200 for each lot in the subdivision, including the remainder.
(c) 
Preliminary major subdivision: $1,000, plus $200 for each lot in the subdivision, including the remainder.
(d) 
Final major subdivision:
[1] 
If approval requested simultaneously with preliminary major subdivision approval: $250, plus $50 for each lot in the subdivision, including the remainder.
[2] 
If approval requested subsequent to preliminary major subdivision approval: $500, plus $100 for each lot in the subdivision, including the remainder.
(e) 
Preliminary major site plan:
[1] 
Limited only to one or a combination of the following activities: change of use; alteration of the facade or roof of buildings; up to 250 square feet increase or reduction in the gross floor area; and/or site improvements or site disturbance of up to 250 square feet in area: $250.
[2] 
All others: $500 for the first 10,000 square feet of lot area or fraction thereof disturbed or altered by the development, plus $100 for each additional 10,000 square feet of lot area or fraction thereof disturbed or altered by the development, plus $300 for the first 1,000 square feet of floor area of any new building or addition, plus $100 for each 1,000 square feet or fraction thereof of floor area over 1,000 square feet. In no case shall the application fee be less than $500 or more than $15,000.
(f) 
Final site plan:
[1] 
If approval requested simultaneously with preliminary major site plan approval: 20% of the fee for the preliminary major site plan, excluding any variance fee.
[2] 
If approval requested subsequent to preliminary major site plan approval: 40% of the fee for the preliminary site plan, excluding any variance fee.
(g) 
"C" variances (N.J.S.A. 40:55D-70c):
[1] 
If not part of site plan or subdivision application, or if bifurcated from a site plan or subdivision application: $300 for each variance, but not more than $900, provided that the "c" variance fee for single-family detached dwellings shall not exceed $600.
[2] 
If reviewed simultaneously with site plan and/or subdivision application: $150 for each variance, but not more than $450.
(h) 
"D" variances (N.J.S.A. 40:55D-70d):
[1] 
If not part of site plan or subdivision application, or if bifurcated from a site plan or subdivision application: 150% of the fee for "d" variances reviewed simultaneously with site plan and/or subdivision application (see below).
[2] 
If reviewed simultaneously with site plan and/or subdivision application:
[a] 
"D" variance involving prohibited use, expansion of nonconforming use or density: $1,000 per variance, but not to exceed $2,000.
[b] 
"D" variance involving violation of conditional use requirement: $500 per variance, but not to exceed $1,000.
[c] 
"D" variance involving violation of floor area ratio or height requirement: $300 per variance, but not to exceed $900.
(i) 
Variance or site plan for application solely limited to an exempt antenna as defined by § 166-4, notwithstanding the above site plan and variance fees: $100.
(j) 
Appeal for encroachment into mapped public area (§§ 166-19E, 166-215): $300.
(k) 
Appeal for permit on a lot not abutting a street (§§ 166-19F, 166-216): $300.
(l) 
Appeal of Zoning Officer or Township Engineer decision based on or made in the enforcement of the zoning regulations, Part 5 of this chapter (§§ 166-19A, 166-21A): $300.
[Amended 5-8-2014 by Ord. No. 17-14]
(m) 
Zoning chapter interpretations or other special questions by Board of Adjustment (§ 166-19B): $300.
(n) 
Amended approval of prior subdivision, site plan or variance application, as defined by § 166-4: 20% of the fee for the original application, but not to exceed $250.
(o) 
Application to extend or toll period of protection against changes in development regulations, to extend expiration of variance deadline or to extend deadline for filing of subdivision: $200.
(p) 
Application for certification of nonconforming use or structure: $50 if certification request decided by Zoning Officer, $200 if certification request decided by Board of Adjustment (see N.J.S.A. 40:55D-68).
(q) 
Special meeting requested by interested party: $1,000.
(r) 
Request to amend Master Plan or development regulations: $1,000 if request involves creation of a new zone district, $300 if request involves relocation of a zone boundary, and $200 for other requests.
(2) 
In the case of proposals requiring a combination of approvals, such as subdivision, site plan and/or variance(s), the applicant shall pay a fee equal to the sum of the fees for each required approval.
B. 
Payment for professional services.
[Amended 12-11-1997 by Ord. No. 34-97]
(1) 
The Chief Financial Officer of the Township shall make all of the payments to professionals for services rendered to the Township or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of the Municipal Land Use Law[1] and this chapter. At the time of filing of an application for development, appeal or other matter pursuant to this chapter, the applicant shall pay to the Board Secretary a deposit, in accordance with the schedule in Subsection B(2) below, to be used to reimburse the Township for said professional services. Deposits shall be paid by cashier's check, certified check, bank money order or cash and shall be placed by the Township in an escrow account if required pursuant to § 166-48C(1). In the case of proposals requiring a combination of approvals, such as subdivision, site plan and/or variance(s), the applicant shall deposit an amount equal to the sum of the deposits required for each application. Notwithstanding the above, if the Board determines that professional services are not required in order to process and review the application, no deposit shall be required.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
(2) 
Amount of deposits. The initial deposit for payment of professional services shall be four times the application fee or fees as set forth in the schedule of fees, provided that if the Board Secretary determines that a greater or lesser initial deposit is necessary to reimburse the anticipated cost of professional services on a particular application, such as circulation-intensive sites requiring the services of a traffic engineering consultant, the applicant shall be required to deposit said greater or lesser amount.
[Amended 12-22-2008 by Ord. No. 32-08]
C. 
Administration of technical review deposit fees. Deposits received for professional services employed by the Township to review applications for development, for Township inspection fees in accordance with this chapter or to satisfy the guaranty requirements of this chapter shall be administered in accordance with the following provisions:
[Amended 12-11-1997 by Ord. No. 34-97]
(1) 
Deposits to be held in escrow. Whenever an amount of money in excess of $5,000 shall be deposited by an applicant with the Township, 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 chapter, shall continue to be the property of the applicant and shall be held in trust by the Township. Deposits received pursuant to this article shall be held in escrow and deposited in a banking institution or savings and loan association in New Jersey insured by an agency of the federal government, or any other fund or depository approved for such deposits by the State of New Jersey. Such deposits shall be placed in an account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. The Township 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.
(2) 
Depletion of deposits. If an escrow account or deposit contains insufficient funds to enable the Township or approving authority to perform required application reviews or improvement inspections, the chief financial officer of the Township 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 Township 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.
(3) 
Failure to maintain adequate deposit. No application shall be deemed complete and no formal action shall be taken by the Board until the initial deposit required by Subsection B(2) above has been submitted. If the funds required by Subsection C(2) above for professional services are not deposited in a timely manner, the Board Secretary shall notify the board having jurisdiction over the application. No further action shall be taken on the application unless the deposits have been made by the applicant as required above. In the event that the time for action by the Board, or any extension thereof as required by this chapter, shall expire prior to the payment of the required deposits, the Board may, at its discretion, dismiss the application.
(4) 
Eligible charges against deposit. 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. The following provisions shall apply:
(a) 
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 Township.
(b) 
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 Township jurisdiction except to the extent consultation with a state agency is necessary due to the effect of state approvals on the subdivision or site plan.
(c) 
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.
(d) 
The only costs that shall be added to any such charges in Subsection C(4)(a) through (c) above 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.
(e) 
The Township or approving authority shall not bill the applicant or charge any escrow account or deposit authorized herein for any Township clerical or administrative functions, overhead expenses, meeting room charges or any other Township costs and expenses, except as provided for in this section, nor shall a Township professional add any such charges to his bill.
(f) 
If the Township retains a different professional or consultant in the place of the professional originally responsible for development application review or inspection of improvements, the Township 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 Township or approving authority shall not bill the applicant or charge the deposit or the escrow account for any such services.
(5) 
Rates of payment for professional services. If the salary, staff support and overhead for a professional are provided by the Township, the hourly rate charged to the deposit from said professional shall be at 200% of the sum of the products resulting from multiplying the hourly base salary, which shall be established annually by ordinance, of each of the professionals by the number of hours spent by the respective professional on 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 Township when fees are not reimbursed or otherwise imposed on applicants or developers. Rates for professional services shall be in accordance with a schedule of professional fees filed annually with the Board Secretary and maintained in the office of the Township Clerk for public inspection.
(6) 
Vouchers for payment of professional services. Each payment charged to a deposit for the review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional. The processing of vouchers shall be in accordance with the following:
(a) 
The voucher shall identify the personnel performing the service and for each date the services are performed, the hours spent to one-quarter-hour increments, the hourly rate and the expenses incurred.
(b) 
All professionals shall submit vouchers to the chief financial officer of the Township on a monthly basis in accordance with the schedules and procedures established by the chief financial officer of the Township.
(c) 
If the services are provided by a Township employee, the Township employee shall prepare and submit to the chief financial officer of the Township a statement containing the same information as required on a voucher, on a monthly basis.
(d) 
The professional shall send an informational copy of all vouchers or statements submitted to the chief financial officer of the Township simultaneously to the applicant.
(e) 
The chief financial officer of the Township 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.
(7) 
Appeals of charges. An applicant shall notify, in writing, the Township Committee, with copies to the chief financial officer of the Township, the approving authority and the professional, whenever the applicant disputes the charges made by a professional for service rendered to the Township in reviewing applications for development, review and preparation of documents, inspection of improvements or other charges made pursuant to the Municipal Land Use Law. The following shall apply:
(a) 
An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by Subsection C(6)(d) above, 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 Township statement of activity against the deposit or escrow account required by Subsection C(6)(e) above.
(b) 
The Township Committee, or its designee, shall, within a reasonable time period, attempt to remediate any disputed charges.
(c) 
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 (N.J.S.A. 52:27D-127) any charge to an escrow account or a deposit by any Township professional or consultant. 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 Township, approving authority and any professional whose charge is the subject of the appeal. The procedures followed by the County Construction Board of Appeals shall be as set forth in N.J.S.A. 40:55D-53.2b and c.
(d) 
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.
(e) 
During the pendence of any appeal, the Township 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 and maintenance guaranties, 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 subsection. The chief financial officer of the Township may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed.
(f) 
If a charge is disallowed after payment, the chief financial officer of the Township 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 Township, the professional or consultant shall reimburse the Township in the amount of any such disallowed charge.
(8) 
Refund of deposits; interest. Any of the funds remaining in the deposit upon completion of the purpose for which the deposit was made shall be returned to the applicant and the account shall be terminated. For deposits over $5,000 placed in an interest bearing account pursuant to this chapter, refunds of interest shall be made as follows:
(a) 
The Township shall not be required to refund an amount of interest paid on a deposit which does not exceed $100 for the year.
(b) 
If the amount of interest exceeds $100 for the year, that entire amount shall belong to the applicant and shall be refunded to him by the Township 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 Township may retain for administrative expenses a sum equivalent to no more than 1/3 of that entire amount, which shall be in lieu of all other administrative and custodial expenses.
(9) 
Procedure for closing of deposits and escrow accounts. The following closeout procedure shall apply to all deposits and escrow accounts established under the Municipal Land Use Law and this chapter:
(a) 
In the case of application review escrows and deposits, the closeout of deposits and escrow accounts shall commence after the approving authority has granted final approval and signed the subdivision plat or site plan or after the authority has denied the application or after the applicant has formally withdrawn the application.
(b) 
In the case of improvement inspection escrows and deposits, the closeout of deposits and escrow accounts shall commence after the improvements have been approved as provided in § 166-67.
(c) 
The applicant shall send written notice by certified mail to the chief financial officer of the Township and the approving authority and to the relevant Township professional that the application is completed, denied or withdrawn or the improvements are completed, as the case may be.
(d) 
After receipt of such notice, the professional shall render a final bill to the chief financial officer of the Township within 30 days and shall send a copy simultaneously to the applicant.
(e) 
The chief financial officer of the Township 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 Subsection C(8) above, shall be refunded to the developer along with the final accounting.
D. 
Governing body decision. A copy of a decision of the governing body to an interested party in connection with an appeal pursuant to Article VIII of this chapter: $10.
E. 
Publication of decision. Publication in a newspaper of general circulation of a decision of the Township Council on an appeal as set forth in Article VIII of this chapter: the cost of publication.
F. 
Certification of subdivision approval. Certification of subdivision approval or deed description pursuant to P.L. 1975, c. 291: $30.
G. 
Zoning permit: $50.
H. 
Transcripts. Copies, duplicates or transcripts of records of proceedings furnished to an interested party pursuant to P.L. 1975, c. 291, Section 6f (N.J.S.A. 40:55D-10f): $0.40 for each folio or original and $0.10 for each of the copies, or the maximum permitted by N.J.S.A. 2A:11-15,[2] whichever is the greater.
[2]
Editor's Note: N.J.S.A. 2A:11-15 was repealed by L. 1991, c. 119, § 4, effective April 25, 1991.
I. 
Appeals to the governing body. Any appeal to the governing body shall be accompanied by a fee of $30. The applicant shall furnish 11 copies of the transcript of the hearing record before the approving authority.
J. 
Inspection fees for required improvements.
[Amended 12-11-1997 by Ord. No. 34-97]
(1) 
The developer shall reimburse the Township for all reasonable inspection fees for the inspection of improvements required pursuant to this chapter. Prior to the initiation of any construction approved pursuant to this chapter, the developer shall deposit with the Board Secretary sufficient funds to reimburse the Township for inspection fees. Deposits shall be paid by cashier's check, certified check, bank money order or cash. The Township shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit. Deposits shall be as follows:
(a) 
The developer shall deposit for the inspection fees an amount with the Township 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 § 166-64.
(b) 
For those developments for which the reasonably anticipated inspection fees are less than $10,000, inspection fee deposits 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 inspection fees. When the balance on deposit drops to 10% of the reasonably anticipated inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Township for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees.
(c) 
For those developments for which the reasonably anticipated inspection fees are $10,000 or greater, inspection fee deposits 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 for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees.
(2) 
Appeals of amount of deposit or amount of fee. Appeals of the amount required to be deposited for the payment of inspection fees or the amount charged for the inspection of improvements shall follow the procedures in § 166-48C(7).
K. 
Township projects exempted. Notwithstanding anything herein to the contrary, land use and development by the Township of Hanover, the Cedar Knolls Fire Department and First Aid Squad, the Whippany Fire Department, the Boards of Commissioners of Fire Districts 2 and 3, the Hanover Sewerage Authority and the Whippanong Library are not subject to requirements relating to fees, reimbursement of professional review costs and the posting of bonds otherwise required hereunder. In addition, development projects of the Township of Hanover, the local Hanover Township Board of Education and the Hanover Park Regional High School District Board of Education shall likewise be exempt from the payment of fees, reimbursement of professional review costs and the posting of bonds otherwise required pursuant to this chapter.
[Amended 4-10-2014 by Ord. No. 9-14]
L. 
List of property owners. List of property owners from current tax duplicate pursuant to P.L. 1975, c. 291, Section 7.1c (N.J.S.A. 40:55D-12c): $0.25 per name or $10, whichever is greater.
M. 
Tree removal permit application fees.
[Added 12-19-2011 by Ord. No. 30-11; amended 8-23-2012 by Ord. No. 19-12; 2-14-2013 by Ord. No. 3-13; 2-14-2013 by Ord. No. 3-13]
(1) 
Tree removal as part of a site plan, subdivision or variance application. No additional application fee above that required for the development application by this chapter shall be required for tree removal requested as part of a site plan, subdivision, variance or other development application or appeal submitted to the Planning Board or Board of Adjustment.
[Amended 8-8-2013 by Ord. No. 22-13]
(2) 
Tree removal for development that does not require Planning Board or Board of Adjustment approval. The application fee shall be $100 for up to three regulated trees to be removed, plus $25 for each additional regulated tree to be removed; provided, however, that the application fee shall not exceed $1,000. Notwithstanding the foregoing, no application fee shall be required for the following tree removal:
(a) 
On each lot, the removal of one tree per calendar year, if the removal of such tree is not prohibited by § 166-131.
(b) 
Removal of any number of trees which are dead, dying, critically diseased and/or hazardous to human life or property.
[Added 12-22-1993 by Ord. No. 43-93; amended 2-26-1998 by Ord. No. 5-98; 12-20-1999 by Ord. No. 33-99; 5-11-2000 by Ord. No. 6-2000; 6-27-2002 by Ord. No. 14-2002; 3-10-2005 by Ord. No. 7-2005; 11-14-2019 by Ord. No. 48-19]
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 8.8), 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) 
In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. (2015), the New Jersey Supreme Court found that the COAH administrative process had become nonfunctioning and, as a result, returned primary jurisdiction over affordable housing matters to the trial courts. Until and unless COAH adopts new regulations or a new statute is passed, any and all references to COAH herein shall mean the trial courts or any agency that supersedes COAH.
(4) 
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 (N.J.S.A. 52:27D-329.2 and N.J.S.A. 40:55D-8.1 through 8.7). 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. 5:93-8 and the Statewide Non-Residential Development Fee Act, N.J.S.A. 40:55D-8.1 through 8.7, as applicable.
B. 
Definitions. As used in this section, the following terms shall have the meanings indicated:
AFFORDABLE HOUSING DEVELOPMENT
A development that contains affordable housing units eligible for credit against the Township's affordable housing which shall include, but is not limited to, an inclusionary development, a municipal construction project or a 100-percent affordable development.
COAH or THE COUNCIL
The New Jersey Council on Affordable Housing established under the Fair Housing Act, which previously had primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the state. Pursuant to In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. (2015), the New Jersey Supreme Court returned primary jurisdiction over affordable housing matters to the trial courts. As such, until and unless COAH adopts new regulations or a new statute is passed, any and all references to COAH shall mean the trial courts or any agency that supersedes COAH.
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
A monetary obligation imposed and paid by a developer pursuant to this section or state law, which money is to be used as permitted by the rules of the New Jersey Council on Affordable Housing or other applicable law, in order to address affordable housing needs.
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 N.J.S.A. 54:1-35c).
C. 
Residential development fees.
(1) 
Imposed fees.
(a) 
Residential developers, except for developers of the types of development specifically exempted, shall pay a fee of 1.0% of the equalized assessed value for residential development, provided that no increased density is permitted.
(b) 
If a "d" variance is granted for increased density, then the additional residential units realized above what is permitted by right under the existing zoning will incur a bonus development fee of 6% rather than the development fee of 1.0%. However, if the zoning on a site has changed during the two-year period prior to the filing of the "d" variance application, the base density for the purpose of calculating the bonus development fee shall be the highest density permitted by right during such two-year period.
(2) 
Eligible exactions, ineligible exactions and exemptions for residential development.
(a) 
Affordable housing developments, developments where the developer is providing for the construction of affordable units elsewhere in the municipality, 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 approval prior to the effective date of this section shall be subject to the law in effect at the time of such approval, unless the developer seeks a substantial change in the approval.
(c) 
Development fees shall be imposed and collected when a developer constructs a new structure, or expands or otherwise alters an existing structure. The development fee shall be calculated based on the increase in the equalized assessed value of the improved structure.
D. 
Nonresidential development fees.
(1) 
Imposed fees.
(a) 
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 2.5% 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 2.5% 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 2.5% development fee, unless otherwise exempted below.
(b) 
The 2.5% fee 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 Form." 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 Hanover as a lien against the real property of the owner.
E. 
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 Code Official responsible for the issuance of a building permit that a development fee is required to be imposed in accordance with this section.
(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 Code Official shall verify the information submitted by the nonresidential developer as per the instructions provided in 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 Code Official responsible for the issuance of a building permit shall notify the 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 Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.
(5) 
The Construction Code Official responsible for the issuance of a final certificate of occupancy shall notify the Tax 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 Tax 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 Hanover 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) 
The developer shall pay 100% of the calculated development fee amount prior to the municipal issuance of a final certificate of occupancy for the subject property.
(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 the Township of Hanover. 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 the Township of Hanover. 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.
F. 
Affordable housing trust fund.
(1) 
There is hereby created an interest-bearing housing trust fund to be maintained by the Township's Chief Municipal Finance Officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls. All development fees paid by developers pursuant to this section shall be deposited in this fund. No money shall be expended from the housing trust fund unless the expenditure conforms to a spending plan approved by COAH.
(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 the Township of Hanover's affordable housing program.
(3) 
If COAH determines that the Township of Hanover is not in conformance with COAH's rules on development fees, COAH is authorized to direct the manner in which all development fees collected pursuant to this section shall be expended. Such authorization is pursuant to this section, COAH's rules on development fees and the written authorization from the governing body to the selected trust fund bank.
(4) 
All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.
G. 
Use of funds.
(1) 
The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the Township of Hanover'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. 5:93-8 and specified in the approved spending plan.
(2) 
Funds shall not be expended to reimburse the Township of Hanover for housing activities which occurred prior to the imposition of required development fees.
(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.
(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. Development fees collected to finance a rehabilitation program or a new construction project shall also be exempt from this requirement.
(4) 
The Township of Hanover 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.
(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.
H. 
Monitoring. The Township of Hanover 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 the Township of Hanover's housing program, as well as to the expenditure of revenues and implementation of the plan certified by COAH or approved by the court. All monitoring reports shall be completed on forms designed by COAH.
I. 
Ongoing collection of fees. The ability for the Township of Hanover to impose, collect and expend development fees shall expire with its substantive certification or judgment of compliance unless the Township of Hanover has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance. If the Township of Hanover fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification or 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 Hanover 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 the Township of Hanover retroactively impose a development fee on such a development. The Township of Hanover shall not expend development fees after the expiration of its substantive certification or judgment of compliance.