[Added 7-21-2021 by Ord. No. 2021-13[1]]
[1]
Editor's Note: This ordinance also repealed former Art. XXXI,
Affordable Housing Development Fees, added 5-19-1999 by Ord. No. 1999-7,
as amended.
A.
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.
B.
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 40:55D-8.7), COAH was 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
a court of competent jurisdiction and have an approved spending plan
may retain fees collected from nonresidential development.
C.
Pursuant to the March 10, 2015, Supreme Court Order, the Court transferred
all functions, powers, and duties of COAH to the courts.
D.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance P.L. 2008, c. 46, Sections 8 and 32-38. Fees collected
pursuant to this article shall be used for the sole purpose of providing
low- and moderate-income housing.
The following terms, as used in this article, shall have the
following meanings:
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 100% affordable development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act[1] which previously had primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
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.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:93-8.
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).
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.
[1]
Editor's Note: See N.J.S.A. 52:27D-301 et seq.
A.
Imposed fees.
(1)
Within all Township zoning district(s), residential developers, except
for developers of the types of development specifically exempted below,
shall pay a fee of 1.5% of the equalized assessed value for residential
development, provided no increased density is permitted.
(2)
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5)
(known as a "density" or "d" variance) has been approved, developers
shall be required to pay a development fee of 6% of the equalized
assessed value for each additional unit that may be realized, except
that this provision shall not be applicable to a development that
will include a set-aside of affordable housing units. 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.
B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
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.
(2)
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. 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 applicable development
fee percentage shall be vested on the date that the building permit
is issued.
(3)
Owner-occupied residential structures demolished and replaced as
a result of a fire, flood, or natural disaster shall be exempt from
paying a development fee.
(4)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(5)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, which requires
the issuance of a certificate of occupancy (for example, when a single-family
home is converted to a two-family home or a single-family home is
converted to an apartment building). The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(6)
Development fees shall be imposed and collected when a certificate
of occupancy is issued for a new residential unit on a newly created
lot that is the result of a subdivision. The development fee shall
be calculated on the equalized assessed value of the land and improvements.
(7)
Additions to existing homes and improvements, such as decks, patios
and like, shall be exempt from the payment of a development fee.
A.
Imposed fees.
(1)
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.
(2)
Nonresidential developers, except for developers of the types of
development specifically exempted herein, 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.
(3)
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 improvements and the equalized assessed
value of the newly improved structure, i.e., land and improvements,
at the time the 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.
B.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(1)
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.
(2)
The 2.5% fee shall not apply to an increase in equalized assessed
value resulting from alterations, change in use within the existing
building footprint, reconstruction, renovations and repairs.
(3)
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.
(4)
A developer of a nonresidential development exempted from the nonresidential
development fee pursuant to P.L. 2008, c. 46, shall be subject to
the development fee at such time as 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 for the nonresidential
development, whichever is later.
(5)
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 Mansfield as a lien against
the real property of the owner.
A.
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.
B.
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, "State of New Jersey Nonresidential
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.
C.
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.
D.
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.
E.
The construction official responsible for the issuance of a final
certificate of occupancy shall notify the local assessor of any and
all requests for the scheduling of a final inspection on property
which is subject to a development fee.
F.
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 associated
with the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
G.
Should the Township of Mansfield 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).
H.
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.
I.
Appeal of development fees.
(1)
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 Mansfield. 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.
(2)
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
Mansfield. 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.
A.
There is a separate, interest-bearing housing trust fund to be maintained
by the Chief Financial Officer of the Township for the purpose of
depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
B.
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development accessible;
(3)
Net rental income (after payment of expenses) from municipally operated
units;
(4)
Repayments from affordable housing program loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with the Township of Mansfield's
affordable housing program.
C.
Within seven days from the opening of the trust fund account, the
Township of Mansfield shall provide COAH and/or the Department of
Community Affairs ("DCA") with written authorization, in the form
of a three-party escrow agreement between the Township, the bank,
and COAH and/or DCA to permit COAH and/or DCA to direct the disbursement
of the funds as provided for in N.J.A.C. 5:93-8.19.
D.
All interest accrued in the Housing Trust Fund shall only be used
to fund eligible affordable housing activities approved by the Court.
A.
The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the Housing Trust Fund may be used
for any activity approved by the Court to address the Township of
Mansfield'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
and market to affordable 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. 5:93-8.16 and
specified in the approved spending plan.
B.
Funds shall not be expended to reimburse the Township of Mansfield
for past affordable housing activities.
C.
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.
(1)
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.
(2)
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.
(3)
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.
D.
The Township of Mansfield may contract with a private or public entity
to administer any part of its amended Housing Element and Fair Share
Plan, including the requirement for affordability assistance, in accordance
with N.J.A.C. 5:93-8.16(d). 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 the monitoring requirements
as set forth in the settlement agreement and Township Housing Element
and Fair Share Plan, approved by court order, dated February 18, 2020,
Tower Gate Associates IMO Tower Gate Associates v. Township of Mansfield,
et al., Docket No.: BUR-L-001739-18. Legal or other fees related to
litigation opposing affordable housing sites or objecting to the COAH's
regulations and/or action are not eligible uses of the Affordable
Housing Trust Fund.
On or about May 10 of each year through 2025, the Township of
Mansfield shall provide reporting of trust fund activity to the Department
of Community Affairs, Local Government Services (LGS), or other entity
designated by the State of New Jersey, with a copy provided to Fair
Share Housing Center and posted on the municipal website, using forms
developed for this purpose by the DCA, COAH, or LGS. This reporting
shall include an accounting of all Housing Trust Fund activity, including
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 Mansfield's housing program, as well as in connection with the
expenditure of revenues and implementation of the plan approved by
the Court.
A.
The ability for the Township of Mansfield to impose, collect and
expend development fees shall expire with the end of the repose period
covered by its judgment of compliance unless the Township of Mansfield
has filed an adopted Housing Element and Fair Share Plan with the
Court or with a designated administrative entity of the State of New
Jersey, has petitioned for a judgment of compliance or substantive
certification, and has received approval of its development fee ordinance
by the entity that will be reviewing the Housing Element and Fair
Share Plan.
B.
If the Township of Mansfield fails to renew its ability to impose
and collect development fees prior to the expiration of its 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 Mansfield shall not impose a development
fee on a development that receives preliminary or final site plan
approval after the expiration of its judgment of compliance and repose,
nor shall the Township of Mansfield retroactively impose a development
fee on such a development. The Township of Mansfield shall not expend
any development fees after the expiration of its judgment of compliance.
