[Added 12-18-2001 by Ord. No. 01-14; amended 12-21-2004 by Ord. No. 2004-16; 7-18-2006 by Ord. No.
2006-20; 5-19-2015 by Ord. No. 2015-05]
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, 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. This article establishes
standards for the collection, maintenance, and expenditure of development
fees pursuant to COAH's rules. Fees collected pursuant to this article
shall be used for the sole purpose of providing low- and moderate-income
housing. This article shall be interpreted within the framework of
COAH's rules on development fees.
Washington Township shall not spend development fees until COAH
has approved a plan for spending such fees and Washington Township
has received third-round substantive certification from COAH or a
judgment of compliance.
A.
Residential
developers shall pay a fee of 1% of the equalized assessed value for
residential development, including teardown/rebuild permits, 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 6% of the equalized assessed value for
each additional unit that may be realized.
A.
Nonresidential
developers shall pay a fee of 2.5% of the equalized assessed value
for nonresidential development, including teardown/rebuild permits.
B.
If
an increase in floor area ratio is approved pursuant to N.J.S.A. 40:55D-70d(4),
then the additional floor area realized (above what is permitted by
right under the existing zoning) will incur a bonus development fee
of 6% of the equalized assessed value for nonresidential development.
However, if the zoning on a site has changed during the two-year period
preceding the filing of such a variance application, the base floor
area for the purposes of calculating the bonus development fee shall
be the highest floor area permitted by right during the two-year period
preceding the filing of the variance application.
C.
There
are certain exemptions as shown on the State of New Jersey Nonresidential
Development Fee Certification/Exemption Form which include the following:
(1)
Nonprofit and public education uses.
(2)
Houses of worship.
(3)
Nonprofit hospital relocation or improvements.
(4)
Transit hub.
(5)
Public amenities such as recreational, community and senior centers.
(6)
Commercial farm or Use Group U buildings and structures.
(7)
State and government buildings.
(8)
Approval granted prior to July 1, 2010 [37a.(1,3,5)].
A.
Affordable housing or developments shall be exempt from development
fees. All other forms of new construction shall be subject to development
fees.
B.
Developments that have received preliminary or final approval prior
to the effective date of this article shall be exempt from development
fees unless the developer seeks a substantial change in the approval.
[Amended 3-15-2022 by Ord. No. 2022-06]
Fifteen hundred dollars of the development fee will be collected
at the time of issuance of a building permit. The remaining portion
will be collected at the issuance of the certificate of occupancy.
The developer shall be responsible for paying the difference between
the $1,500 fee and that determined at issuance of certificate of occupancy.
Imposed and collected development fees that are challenged shall
be placed in an interest bearing escrow account by Washington Township.
If all or a portion of the contested fees are returned to the developer,
the accrued interest on the returned amount shall also be returned.
A.
There is hereby created a separate, interest-bearing Housing Trust
Fund in the banking institution as specified in the annual cash management
resolution, or as amended, 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 article shall be deposited
into this fund. A copy of this resolution shall be filed with COAH.
B.
Within seven days from the opening of the trust fund account, Washington
Township shall provide COAH with written authorization, in the form
of a three-party escrow agreement between the municipality, the banking
institution as designated in the cash management resolution, and COAH
to permit COAH to direct the disbursement of the funds as provided
for in N.J.A.C. 5:94-6.16(b).
C.
No funds shall be expended from the Affordable Housing Trust Fund
unless the expenditure conforms to a spending plan approved by COAH.
All interest accrued in the Housing Trust Fund shall only be used
on eligible affordable housing activities approved by COAH.
A.
Funds deposited in the Housing Trust Fund may be used for any activity
approved by COAH to address the municipal fair share. Such activities
include, but are not limited to new construction, assisted living,
alternative living units, RCAs subject to the provisions of N.J.A.C.
5:94-4.4(d), purchase of land for affordable housing, improvement
of land to be used for affordable housing, purchase of housing, extensions
or improvements of roads and infrastructure to affordable housing
sites, financial assistance designed to increase affordability, or
administration necessary for implementation of the Housing Element
and Fair Share Plan. The expenditure of all funds shall conform to
a spending plan approved by COAH.
B.
Funds shall not be expended to reimburse Washington Township for
past housing activities.
C.
After subtracting development fees collected to finance an RCA, a
rehabilitation program or a new construction project that are necessary
to address the Washington Township affordable housing obligation,
at least 30% of the balance remaining 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, and rental assistance.
(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 third round 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 shall entitle Washington Township to bonus credits
pursuant to N.J.A.C. 5:94-4.22.
(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.
Washington Township 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. 5:94-7.
E.
No more than 20% of the revenues collected from development fees
each year, exclusive of the fees used to fund an RCA, shall 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. Development fee administrative costs are
calculated and may be expended at the end of each year or upon receipt
of the fees.
Washington Township shall complete and return to COAH all monitoring
forms included in the annual monitoring report related to the collection
of development fees from residential and nonresidential developers,
payments in lieu of constructing affordable units on site, and funds
from the sale of units with extinguished controls, and the expenditure
of revenues and implementation of the plan certified by COAH. All
monitoring reports shall be completed on forms designed by COAH.
The ability for Washington Township to impose, collect and expend
development fees shall expire with its latest substantive certification
unless Washington Township 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 Washington Township fails to renew its ability to impose and collect
development fees prior to the date of expiration of its latest substantive
certification, it may resume the imposition and collection of development
fees only by complying with the requirements of N.J.A.C. 5:94-6. Washington
Township shall not impose a development fee on a development that
receives preliminary or final approval after the expiration of its
latest substantive certification, nor will Washington Township retroactively
impose a development fee on such a development. Washington Township
will not expend development fees after the expiration of its latest
substantive certification.
