[Added 7-17-1995 by Ord. No. 22-95]
The New Jersey Supreme Court, in Holmdel Builders
Association v. Holmdel Township, 121 N.J. 550 (1990), determined that
mandatory development fees are both statutorily and constitutionally
permissible. The Court further anticipated that the Council on Affordable
Housing (COAH) would promulgate appropriate development fee rules
specifying, among other things, the standards for these development
fees. The purpose of this chapter is to provide such rules pursuant
to N.J.A.C. 5:93-8.1 et seq., which establishes standards for the
collection, maintenance and expenditure of development fees. Fees
collected pursuant to this chapter shall be used for the sole purpose
of providing low- and moderate-income housing.
As used in this chapter, the following terms
shall have the meanings indicated:
The New Jersey Council on Affordable Housing established
under the Fair Housing Act of 1985.[1]
Money paid by an individual, person, partnership, association,
company or corporation for the improvement of property as permitted
in COAH's rules.
The value of a property determined by the Township Tax Assessor
through a process designed to ensure that all property in the Township
is assessed at the same assessment ratio or ratios required by law.
Estimates at the time of building permit may be obtained by the Tax
Assessor utilizing tax estimates for construction cost. Final equalized
assessed value will be determined at project completion by the Township
Tax Assessor.
A determination by the Council approving a municipality's
housing element and fair share plan in accordance with the provisions
of the Fair Housing Act and the rules and criteria as set forth herein.
A grant of substantive certification shall be valid for a period of
six years in accordance with the terms and conditions contained therein.
[1]
Editor's Note: See N.J.S.A. 52:27D-301 et
seq.
A.
Residential development.
(1)
Residential development fees shall be 1.5% (0.015)
of the equalized assessed value for residential development, provided
that no increased density is permitted. Additions and alterations
that expand the livable area footprint of an existing structure shall
pay a development fee calculated on the increase in the equalized
assessed value that results from the addition or alteration. Decks,
patios and garages which do not increase the livable area shall be
exempt.
[Amended 3-21-2005 by Ord. No. 9-05; 8-18-2008 by Ord. No.
14-08; 9-19-2022 by Ord. No. 08-22]
(2)
If a “d” variance is granted for an increase
in residential density pursuant to N.J.S.A 40:55D-70d(5), 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%. However, if the zoning
on a site has changed during the two-year period preceding the filing
of the “d” 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 years preceding
the filing of the “d” variance application.
[1]
Editor's Note: This ordinance also provided
for the renumbering of former Subsection A(2) and (3) as Subsection
A(3) and (4), respectively.
(3)
The Township may allow developers of sites zoned for
inclusionary development to pay a fee in lieu of building low- and
moderate-income units, provided that the Council determines that the
Township's housing element and fair share plan provides a realistic
opportunity for addressing the Township's fair share obligation. The
fee may equal the cost of subsidizing the low- and moderate-income
units that are replaced by the development fee. For example, an inclusionary
development may include a twenty-percent set-aside, no set-aside and
a fee that is the equivalent of a twenty-percent set-aside or a combination
of a fee and set-aside that is the equivalent of a twenty-percent
set-aside.
(4)
The Township may collect fees exceeding those permitted
in this section, provided that the Township enters into agreements
with developers that offer a financial incentive for paying higher
fees. The financial incentive may be in the form of a tax abatement.
No agreement may provide for a voluntary development fee without also
providing for a comparable off-setting incentive. All agreements are
subject to Council approval.
B.
Nonresidential development.
(1)
Nonresidential development fees shall be 2.5% (0.025)
of the equalized assessed value for nonresidential development.
[Amended 3-21-2005 by Ord. No. 9-05; 8-18-2008 by Ord. No.
14-08]
(2)
If A “d” variance is granted for an increase
in floor area 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% rather than the development
fee of 2%. However, if the zoning on a site has changed during the
two-year period preceding the filing of the “d” variance
application, the floor area for purposes of calculating the bonus
development fee shall be the highest permitted by right during the
two years preceding the filing of the “d” variance application.
[2]
Editor's Note: This ordinance also provided
for the renumbering of former Subsection B(2) as Subsection B(3).
(3)
The Township may collect fees exceeding those permitted
in this section, provided that it enters into agreements with developers
that offer a financial incentive for paying higher fees. Such agreements
may include, but are not limited to, a tax abatement, increased commercial/industrial
square footage, increased commercial/industrial lot coverage and/or
increased commercial/industrial impervious coverage in return for
an increased development fee. The development fee negotiated must
bear a reasonable relationship to the additional commercial/industrial
consideration to be received. All agreements are subject to approval
by the Council.
A.
Except as provided for in § 111-49 above, developers of low- and moderate-income units shall be exempt from paying development fees. In addition, developers of houses of worship shall be exempt from paying development fees. All other forms of new construction are subject to the development fee.
[Amended 8-15-2005 by Ord. No. 30-05]
B.
Developers that expand or increase the intensity of
use of an existing structure shall not be required to pay a development
fee.
C.
Developers that have received preliminary or final
approval prior to the effective date of this chapter shall be exempt
from paying a development fee unless the developer seeks a major change
in the approval. Examples of a major change in the approval include
a substantial alteration in site layout, development density or types
of uses within the development.
A.
The Township shall collect 50% of the calculated development
fee at the time of issuance of the building permit. The development
fee shall be estimated by the Tax Assessor prior to the issuance of
a building permit.
B.
The Township shall collect the remaining portion of
the fee at the time of issuance of a certificate of occupancy. At
the issuance of a certificate of occupancy, the Tax Assessor shall
calculate the equalized assessed value and the appropriate development
fee. The developer shall be responsible for paying the difference
between the fee calculated at the issuance of the certificate of occupancy
and the amount paid at the issuance of the building permit.
All development fees shall be deposited in a separate interest-bearing Housing Trust Fund. In establishing the Housing Trust Fund, the Township shall provide whatever express, written authorization that may be required by the bank utilized by the Township in order to permit the Council to direct the disbursement of development fees pursuant to § 111-55. No money shall be expended from the Housing Trust Fund unless the expenditure conforms to a spending plan approved by COAH.
A.
The Township shall use revenues collected from development
fees for any activity approved by the Council for addressing the Township's
fair share obligation. Such activities include, but are not limited
to, rehabilitation, new construction, regional contribution agreements,
purchase of land for low- and moderate-income housing, improvement
of land to be used for low- and moderate-income housing, extensions
and/or improvements of roads and infrastructure to low- and moderate-income
housing sites, assistance designed to render units to be more affordable
and administrative costs necessary to implement the Township's housing
element. The expenditure of all money shall conform to a spending
plan approved by the Council.
B.
Funds shall not be expended to reimburse the Township
for housing activities that preceded substantive certification.
C.
At least 30% of the revenues collected from development fees other than those collected pursuant to § 111-49A(4) for inclusionary developments shall be devoted to render units more affordable. Examples of such activities include, but are not limited to, down payment assistance, low-interest loans and rental assistance. This requirement may be waived in whole or in part when the Township demonstrates the ability to address the requirement of affordability assistance from another source.
[Amended 12-20-1999 by Ord. No. 34-99]
D.
The Township may contract with a private or public
entity to administer the implementation of any part of its housing
element, including the requirement for affordability assistance.
E.
No more than 20% of the revenues collected from development
fees 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 rehabilitation program, a new
construction program, a regional contribution agreement, a housing
element and an affirmative marketing program. Administrative funds
may be used for income qualification of households, monitoring the
turnover of sale and rental units and compliance with the Council's
monitoring requirements. Development fees may not be used to defray
the costs of existing staff, except that the Council shall consider
permitting fees to defray the cost of staff whose sole responsibility
is to implement a housing element.
The Township shall complete and return all monitoring
forms related to the collection of fees, expenditure of revenues and
implementation of the plan certified by the Council or approved by
the court. Quarterly financial reports and annual program implementation
and auditing reports shall be completed on forms designed by the Council.
A.
In the event that any of the conditions set forth in Subsection B below occur, the Council shall be authorized, on behalf of the Township, to direct the manner in which all development fees collected pursuant to this chapter shall be expended. Such fees shall be used only for the Township's affordable housing program, and accounting shall be provided therefor. Should any such condition occur, such revenues shall immediately become available for expenditure at the direction of the Council upon the Township Clerk's receipt of written notification from the Council that such a condition has occurred. In furtherance of the foregoing, the Township shall, in establishing a bank account pursuant to § 111-52 of this chapter, ensure that the Township has provided whatever express written authorization which may be required by the bank to permit the Council to direct the disbursement of such revenues from the account following the delivery to the bank of the aforementioned written notification provided by the Council to the Township Clerk and the Township's Chief Financial Officer.
B.
Occurrence of the following may result in the Council taking an action pursuant to Subsection A above:
(1)
Failure to submit a spending plan pursuant to § 111-53 above within the time limits imposed by the Council;
(2)
Failure to meet deadlines for information required
by the Council in its review of this chapter, the Township's housing
element or spending plan;
(3)
Failure to proceed through the Council's administrative
process toward substantive certification in a timely manner;
(4)
Failure to address the Council's conditions for approval
of a plan to spend development fees within the deadlines imposed by
the Council;
(5)
Failure to address the Council's conditions for substantive
certification within deadlines imposed by the Council;
(6)
Failure to submit accurate monitoring reports within
the time limits imposed by the Council;
(7)
Failure to implement the spending plan for development
fees within the time limits imposed by the Council or within reasonable
extensions granted by the Council;
(8)
Expenditure of development fees on activities not
permitted by the Council;
(9)
Revocation of the Township's substantive certification;
or
(10)
Other good cause demonstrating that the revenues
are not being used for their intended purpose.
This chapter shall expire if:
A.
COAH dismisses or denies the Township's petition for
substantive certification.
B.
COAH revokes substantive certification or its certification
of this chapter.
C.
Substantive certification expires prior to the Township's
filing of an adopted housing element with COAH, petitioning for substantive
certification and giving COAH's approval of this chapter.
