[HISTORY: Adopted by the Township Committee
of the Township of Elk as indicated in article histories. Amendments
noted where applicable.]
GENERAL REFERENCES
Affordable housing — See Ch. 40.
[Adopted 11-5-1998]
Each applicant who files an application before
the Elk Township Planning Board shall pay the applicable application
fee listed below for such application. The application fee provided
for herein shall be nonrefundable and is required for purposes of
offsetting the administrative and clerical costs of operating the
Planning Board and for costs which may be incurred by the Planning
Board in the normal processing of such applications (exclusive of
the legal, planning, engineering and other professional services deemed
necessary by the Planning Board).
A.
In addition to the nonrefundable application fees
referred to above, each applicant before the Planning Board shall
establish and make the required payments to an escrow account to be
maintained by the township for the purpose of providing sufficient
moneys to pay the costs of review by professionals engaged by the
Planning Board.
B.
Upon submitting an application for the development
to the Planning Board, the applicant shall be required to deposit
with the Township Treasurer the sums hereinafter provided and execute
an escrow agreement requiring the applicant to pay all necessary and
reasonable costs incurred by the township for technical and professional
review by the approving authority. The escrow agreement shall be in
a form approved by the Township Committee. The amounts specified below
to be placed in escrow are estimates of professional fees only and
should not be considered as a minimum or maximum fee which may be
required of the applicant to compensate the township for legal, engineering,
planning or other professional services. Said fees must be paid prior
to the Board certifying the application as complete; provided, however,
that payment of the fee in and of itself shall not be deemed as making
the application complete. In the event that the amounts required to
be posted by this section are not sufficient to cover the professional
charges incurred by the Township of Elk for such application, then
the applicant shall pay the amount required which is over and above
the funds previously collected and shall not receive any approvals
or other permits from the township before such fees are paid in full.
In the event that the amounts posted as fees shall be in excess of
the amount required for all professional review, the excess funds
shall be returned to the applicant within 30 days of the issuance
of a certificate of occupancy for the project which the application
fee covers. The Board Secretary shall periodically advise the Board
Chairman of the balance of all escrow accounts and whether additional
funds are required as provided for hereinafter. In the event that
additional funds are required, the Board Chairman or Secretary shall
notify the applicant of amounts required as additional fees. In the
event that the applicant refuses or fails to make the payments required
within 10 days of demand, the Board Chairman shall notify the approving
authority. In the event that the additional fees are not paid, the
Planning Board may deny the application before it, and no other permits
or certificates shall be issued by the township to the applicant for
the applicable project until payment is made in full. In the event
that additional fees are required, the applicant shall pay such fees
to the Township of Elk in accordance with the same agreement already
entered into or under any additional terms which may be agreed to
by the applicant and the approving authority.
C.
Before issuing a construction permit or certificate
of occupancy for any element of a project, the applicable code official
for the Township of Elk shall first determine from the Board Secretary
whether there are sufficient escrow funds to pay all pending or reasonably
anticipated bills attributable for professional review to the particular
project. The applicable code officer shall not issue the requested
construction permit or certificate of occupancy until the amounts
which are due or necessary to provide sufficient funds in escrow to
pay such pending or reasonably anticipated bills are paid in full
by the applicant.
The following is a schedule of fees to be paid
by the applicant upon filing the application:
A.
Schedule of subdivision and site plan fees.
(2)
(3)
(4)
Planned unit development:
(a)
(b)
(5)
B.
Use variance fees (applications made under N.J.S.A.
40:55D-70d):
[Amended 7-3-2003 by Ord. No. O-8-2003; amended 9-4-2003 by Ord. No. O-14-2003; 4-3-2008 by Ord. No. O-2008-3; 6-5-2009 by Ord. No. O-2009-5]
|
Type
|
Fee
| |
|---|---|---|
|
Application fee
|
$200
| |
|
Initial escrow fee deposit
|
$2,500
| |
|
Publication fee
|
$25
|
C.
Bulk variance fees (application made under N.J.S.A.
40:55D-70c):
[Amended 7-3-2003 by Ord. No. O-8-2003; 9-4-2003 by Ord. No. O-14-2003; 4-3-2008 by Ord. No. O-2008-3; 6-5-2009 by Ord. No. O-2009-5]
|
Type
|
Fee
| |
|---|---|---|
|
Application fee
|
$200
| |
|
Initial escrow fee deposit
|
$1,500
| |
|
Publication fee
|
$25
|
D.
Appeals (applications made under N.J.S.A. 40:55D-70a):
[Amended 6-5-2009 by Ord.
No. O-2009-5]
|
Type
|
Fee
| |
|---|---|---|
|
Application fee
|
$200
| |
|
Initial escrow fee deposit
|
$1,500
| |
|
Publication fee
|
$25
|
E.
Interpretation (applications made under N.J.S.A. 40:55D-70b):
[Amended 6-5-2009 by Ord.
No. O-2009-5]
|
Type
|
Fee
| |
|---|---|---|
|
Application fee
|
$100
| |
|
Initial escrow fee deposit
|
$500
|
F.
Administrative
nonsubstantial design change request:
[Added 6-5-2009 by Ord.
No. O-2009-5]
|
Type
|
Fee
| |
|---|---|---|
|
Application fee
|
$100
| |
|
Initial escrow fee deposit
|
$500
| |
|
Publication fee
|
$25
|
H.
Applications for vacation of streets. Engineering
review: $500.
[Added 12-21-2004 by Ord. No. O-2004-10]
I.
Zoning permits. Zoning permits shall hereafter be
secured from the Zoning Office prior to the issuance of a building
permit or upon a change in the use of a structure or land. Each application
shall be accompanied by a fee of $50.
[Added 5-5-2005 by Ord. No. O-2005-3]
[Adopted 12-18-2018 by Ord. No. O-11-2018[1]]
[1]
Editor's Note: This ordinance also repealed former Art. II,
Mandatory Development Fees, adopted 7-19-2005 by Ord. No. O-2005-7,
amended in its entirety 4-20-2009 by Ord. No. O-2009-4.
A.
Purpose. This article establishes standards for the collection, maintenance,
and expenditure of development fees that are consistent with COAH's
regulations developed in response to P.L. 2008, c. 46, Sections 8
and 32 to 38 (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). Fees
collected pursuant to this article shall be used for the sole purpose
of providing very-low-, low- and moderate-income housing in accordance
with a court-approved spending plan.
C.
AFFORDABLE HOUSING DEVELOPMENT
COAH or THE COUNCIL
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
Definitions. 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-percent affordable housing
development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
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 authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27d-301
et seq., and regulated by applicable COAH rules.
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.
D.
Residential development fees.
(1)
Imposition of fees.
(a)
Within the Township of Elk, all residential developers, except
for developers of the types of developments specifically exempted
in Section D(2) below and developers of developments that include
affordable housing, shall pay a fee of 1.5% of the equalized assessed
value for all new residential development provided no increased density
is permitted. Development fees shall also be imposed and collected
when an additional dwelling unit is added to an existing residential
structure; in such cases, the fee shall be calculated based on the
increase in the equalized assessed value of the property due to the
additional dwelling unit.
(b)
When an increase in residential density is permitted pursuant
to a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers
shall be required to pay a "bonus" development fee of 6.0% 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 affordable housing. 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.
(2)
Eligible exactions, ineligible exactions and exemptions for residential
developments.
(a)
Affordable housing developments and/or developments where the
developer has made a payment in lieu of on-site construction of affordable
units, if permitted by ordinance and approved by the court as part
of its approval of the settlement of litigation in In the Matter of
the Application of the Township of Elk, Docket No.: GLO-L-913-15,
shall be exempt from the payment of development fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption of this article shall be exempt from
the payment of development fees, unless the developer seeks a substantial
change in the original approval. Where site plan approval is not applicable,
the issuance of a zoning permit and/or construction permit shall be
synonymous with preliminary or final site plan approval for the purpose
of determining the right to an exemption. In all cases, the applicable
fee percentage shall be determined based upon the Development Fee
Ordinance in effect on the date that the construction permit is issued.
(c)
Improvements or additions to existing one- and two-family dwellings
on individual lots shall not be required to pay a development fee,
but a development fee shall be charged for any new dwelling constructed
as a replacement for a previously existing dwelling on the same lot
that was or will be demolished, unless the owner resided in the previous
dwelling for a period of one year or more prior to obtaining a demolition
permit. Where a development fee is charged for a replacement dwelling,
the development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
(d)
Homes replaced as a result of a natural disaster (such as a
fire or flood) shall be exempt from the payment of a development fee.
E.
Nonresidential development fees.
(1)
Imposition of fees.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, 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)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, 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 improvements and the equalized assessed
value of the newly improved structure, i.e., land and improvements,
and such calculation shall be made at the time a 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 a 2.5% development fee, unless otherwise
exempted below.
(b)
The 2.5% development fee shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within the
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 the Statewide Non-Residential Development Fee
Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7), as specified in Form
N-RDF "State of New Jersey Non-Residential Development Certification/Exemption."
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 the Statewide Non-Residential
Development Fee Act shall be subject to the 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.
(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 Elk as a lien against the real
property of the owner.
F.
Collection procedures.
(1)
Upon the granting of a preliminary, final or other applicable approval
for a development, the approving authority or entity shall notify
or direct its staff to notify the Construction Official responsible
for the issuance of a construction permit.
(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 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.
(3)
The Construction Official responsible for the issuance of a construction
permit shall notify the Gloucester County Tax Assessor of the issuance
of the first construction permit for a development which is subject
to a development fee.
(4)
Within 90 days of receipt of such notification, the Gloucester County
Tax Assessor shall prepare an estimate of the equalized assessed value
of the development based on the plans filed.
(5)
The Construction Official responsible for the issuance of a final
certificate of occupancy shall notify the Township Tax Assessor of
any and all requests for the scheduling of a final inspection on a
property which is subject to a development fee.
(6)
Within 10 business days of a request for the scheduling of a final
inspection, the Township Tax 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.
(7)
Should the Township of Elk 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)
Except as provided in Section E(1)(c) hereinabove, 50% of the initially
calculated development fee shall be collected at the time of issuance
of the construction permit. The remaining portion shall be collected
at the time of issuance of the certificate of occupancy. The developer
shall be responsible for paying the difference between the fee calculated
at the time of issuance of the construction permit and that determined
at the time of issuance of the certificate of occupancy.
(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 Elk. 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
Elk. 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.
G.
Affordable Housing Trust Fund.
(1)
There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Township of Elk for the purpose of depositing development fees collected
from residential and nonresidential developers and proceeds from the
sale of units with extinguished controls.
(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 a fraction of an
affordable unit, where permitted by ordinance or by agreement with
the Township of Elk;
(b)
Funds contributed by developers to make 10% of the adaptable
entrances in a townhouse or other multistory attached dwelling unit
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 Elk's affordable
housing program.
(3)
In the event of a failure by the Township of Elk to comply with trust
fund monitoring and reporting requirements or to submit accurate monitoring
reports; or a failure to comply with the conditions of the judgment
of compliance or a revocation of the judgment of compliance; or a
failure to implement the approved spending plan and to expend funds
within the applicable required time period as set forth in In re Tp.
of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (affd 442 N.J. Super.
563); or the expenditure of funds on activities not approved by the
court; or for other good cause demonstrating the unapproved use(s)
of funds, the court may authorize the State of New Jersey, Department
of Community Affairs, Division of Local Government Services (DLGS),
to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the Township of Elk, or, if not practicable, then within the
county or the housing region. Any party may bring a motion before
the Superior Court presenting evidence of such condition(s), and the
court may, after considering the evidence and providing the municipality
a reasonable opportunity to respond and/or to remedy the noncompliant
condition(s), and upon a finding of continuing and deliberate noncompliance,
determine to authorize DLGS to direct the expenditure of funds in
the trust fund. The court may also impose such other remedies as may
be reasonable and appropriate to the circumstances.
(4)
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the court.
H.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved
by the court. Funds deposited in the Affordable Housing Trust Fund
may be used for any activity approved by the court to address the
Township of Elk'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; housing rehabilitation;
new construction of affordable housing units and related costs; accessory
apartments; a market to affordable program; 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; and/or any other activity
permitted by the court and specified in the approved spending plan.
(2)
Funds shall not be expended to reimburse the Township of Elk for
past housing activities.
(3)
At least 30% of all development fees collected and interest earned
on such fees 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 the median income
for Housing Region 5, in which Elk is located.
(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. The specific
programs to be used for affordability assistance shall be identified
and described within the spending plan.
(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. The specific programs
to be used for very-low-income affordability assistance shall be identified
and described within the spending plan.
(c)
Payments in lieu of constructing affordable housing units on
site, if permitted by ordinance or by agreement with the Township
of Elk, and funds from the sale of units with extinguished controls
shall be exempt from the affordability assistance requirement.
(4)
The Township of Elk may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including its programs 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 consultants'
fees necessary to develop or implement a new construction program,
prepare a Housing Element and Fair Share Plan, and/or administer an
affirmative marketing program or a rehabilitation program.
(a)
In the case of a rehabilitation program, the administrative
costs of the rehabilitation program shall be included as part of the
20% of collected development fees that may be expended on administration.
(b)
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 related
to securing or appealing a judgment from the court are not eligible
uses of the Affordable Housing Trust Fund.
I.
Monitoring. The Township of Elk shall provide annual reporting of
Affordable Housing Trust Fund activity to the State of New Jersey,
Department of Community Affairs, Council on Affordable Housing or
Local Government Services 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 New Jersey Department of Community Affairs, Council on Affordable
Housing or Local Government Services. The reporting shall include
an accounting of all Affordable Housing Trust Fund activity, including
the sources and amounts of funds collected and the amounts and purposes
for which any funds have been expended. Such reporting shall include
an accounting of development fees collected from residential and nonresidential
developers, payments in lieu of constructing affordable units on site
(if permitted by ordinance or by agreement with the Township), funds
from the sale of units with extinguished controls, barrier free escrow
funds, rental income from Township-owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Elk's affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the spending plan approved by the court.
J.
Ongoing collection of fees.
(1)
The ability for the Township of Elk to impose, collect and expend
development fees shall expire with the expiration of the repose period
covered by its judgment of compliance unless the Township of Elk has
first filed an adopted Housing Element and Fair Share Plan with the
court or with a designated state administrative agency, has petitioned
for a judgment of compliance from the court or for substantive certification
or its equivalent from a state administrative agency authorized to
approve and administer municipal affordable housing compliance and
has received approval of its Development Fee Ordinance from the entity
that will be reviewing and approving the Housing Element and Fair
Share Plan.
(2)
If the Township of Elk 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 Affordable Housing 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).
(3)
The Township of Elk shall not impose a residential development fee
on a development that receives preliminary or final site plan approval
after the expiration of its judgment of compliance, nor shall the
Township of Elk retroactively impose a development fee on such a development.
The Township of Elk also shall not expend any of its collected development
fees after the expiration of its judgment of compliance.
