[HISTORY: Adopted by the Township Committee of the Township of Mantua 6-23-2008 by Ord. No. O-11-2008. Amendments noted where applicable.]
Land development — See Ch. 230.
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 chapter establishes standards for the collection, maintenance and expenditure of development fees pursuant to COAH's rules. Fees collected pursuant to this chapter shall be used for the sole purpose of providing low- and moderate-income housing. This chapter shall be interpreted within the framework of COAH's rules on development fees.
Mantua Township shall not spend development fees until COAH has approved a plan for spending such fees and Mantua Township has received third round substantive certification from COAH or a judgment of compliance.
The following terms, as used in this chapter, 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.
- The New Jersey Council on Affordable Housing.
- DEVELOPMENT FEE
- Funds paid by an individual, person, partnership, association, company or corporation for the improvement of property as permitted in COAH's rules.
- EQUALIZED ASSESSED VALUE
- The value of a property determined by the Municipal Tax Assessor through a process designed to ensure that all property in the municipality is assessed at the same assessment ratio or ratios required by law. Estimates at the time of issuance of a building permit may be obtained utilizing estimates for construction cost. Final equalized assessed value shall be determined at project completion by the Municipal Tax Assessor.
Within all of the residential zoning district(s), residential developers shall pay a fee of 1.5% of the equalized assessed value for residential development, provided no increased density is permitted.
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. 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. Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1% of the equalized assessed value. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the 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.
Within all nonresidential district(s), nonresidential developers shall pay a fee of 3% of the equalized assessed value for nonresidential development.
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) shall 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.
Affordable housing developments shall be exempt from development fees. All other forms of new construction shall be subject to development fees.
Developments that have received preliminary or final approval prior to the imposition of a municipal development fee shall be exempt from development fees unless the developer seeks a substantial change in the approval.
Development fees shall be imposed and collected when an existing structure is expanded or undergoes a change to a more intense use. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
Developers of any house of worship, library, school or other governmental facility shall be exempt from paying a development fee.
The entire development fee will be collected at the issuance of the certificate of occupancy.
Imposed and collected development fees that are challenged shall be placed in an interest-bearing escrow account by Mantua 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.
There is hereby created a separate interest-bearing housing trust fund 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 chapter shall be deposited into this fund.
Within seven days from the opening of the trust fund account, Mantua Township shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the bank 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).
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.
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, rehabilitation, new construction, RCAs subject to the provisions of N.J.A.C. 5:94-4.4(d), ECHO housing, 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.
Funds shall not be expended to reimburse Mantua Township for past housing activities.
After subtracting development fees collected to finance an RCA, a rehabilitation program or a new construction project that are necessary to address the Mantua 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.
Affordability assistance programs may include down payment assistance, security deposit assistance, low-interest loans, and rental assistance.
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 Mantua Township to bonus credits pursuant to N.J.A.C. 5:94-4.22.
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.
Mantua 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.
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.
Mantua 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 Mantua Township to impose, collect and expend development fees shall expire with its third round substantive certification, unless Mantua 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 Mantua Township fails to renew its ability to impose and collect development fees prior to its expiration of its 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. Mantua Township shall not impose a development fee on a development that receives preliminary or final approval after the expiration of its substantive certification, nor will Mantua Township retroactively impose a development fee on such a development. Mantua Township will not expend development fees after the expiration of its substantive certification or judgment of compliance.