[Adopted 12-22-2008 by Ord. No. 08-11]
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, N.J.S.A. 52:27D-301 et sec, and the State Constitution, subject
to the rules adopted by the New Jersey Council on Affordable Housing
(COAH).
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 8.7), COAH is 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
the Council or court of competent jurisdiction and have an approved
spending plan may retain fees collected from nonresidential development.
C.
This article establishes standards for the collection,
maintenance, and expenditure of development fees pursuant to COAH's
regulations and in accordance with 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. This article
shall be interpreted within the framework of COAH's rules on development
fees, codified at N.J.A.C. 5:97-8.
A.
The Township of Mannington shall not impose development
fees on any applicant pursuant to this article until COAH or a court
has approved the Development Fee Ordinance pursuant to N.JA.C. 5:96-5.1.
B.
The Township of Mannington shall not spend development
fees until COAH or a court has approved a plan for spending such fees
in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
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 one-hundred-percent affordable
development.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
considerations 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 under N.J.A.C. 5:97-8.3.
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 N.J.S.A. 54:l-35c).
Those strategies that minimize the impact of development
on the environment and enhance 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.
A.
Imposed fees.
(1)
Within the Township of Mannington zoning districts,
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 "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 1.5% of the equalized assessed value on the first
two units; and the specified higher percentage up to 6% of the equalized
assessed value for the two additional units, provided zoning on the
site has not changed during the two-year period preceding the filing
of such a variance application.)
B.
Eligible exactions, ineligible exactions and exemptions
for residential development.
(1)
Affordable housing developments 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
fee percentage shall be vested on the date that the building permit
is issued.
(3)
Development fees shall be imposed and collected when
an existing structure undergoes a change to a more intense use, is
demolished and replaced, or is expanded, if the expansion is not otherwise
exempt from the development fee requirement. The development fee shall
be calculated on the increase in the equalized assessed value of the
improved structure.
(4)
Structural alterations that do not increase gross
floor area of a building or structure or increase the equalized assessed
value of a property shall be exempted from paying a development fee.
(5)
Nonprofit organizations which have received tax-exempt
status pursuant to Section 50l(c)(3) of the Internal Revenue Code,
providing that current evidence of that status is submitted to the
Municipal Clerk, together with a certification that services of the
organization are provided at reduced rates to those who establish
an inability to pay existing charges, shall be exempted from paying
a development fee.
(6)
Federal, state, county and local governments shall
be exempted from paying 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, 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 pre-existing land and improvement and the equalized
assessed value of the newly improved structure, i.e. land and improvement,
at the time 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 development fee
of 2.5%, unless otherwise exempted below.
(2)
The fee of 2.5% shall not apply to an increase in
equalized assessed value resulting from alterations, change in use
within existing footprint, reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from 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."
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 it at such time 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 of 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 Mannington
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 Township's 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
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 non-residential 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 notifies 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
of the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
G.
Should the Township of Mannington 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 issuance of the building permit and that determined
at issuance of the 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
Mannington. 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 Mannington. 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 hereby created a separate, interest-bearing
housing trust fund to be maintained by the Township's Chief Financial
Officer 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 affordable
entrances in a townhouse or other multistory attached development
accessible;
(3)
Rental income 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 Mannington's affordable housing program.
C.
Within seven days from the opening of the trust fund
account, the Township of Mannington shall provide COAH with written
authorization, in the form of a three-party escrow agreement between
the municipality, the Township's banking institution, and COAH to
permit COAH to direct the disbursement of the funds as provided for
in N.J.A.C. 5:97-8.13(b).
D.
No funds shall be expended from the Affordable Housing
Trust Fund unless the expenditure conforms to a spending plan approved
by COAH or the Court. All interest accrued in the housing trust fund
shall only be used on eligible affordable housing activities approved
by COAH or the Court.
A.
The expenditure of all funds shall conform to a spending
plan approved by COAH or the Court. Funds deposited in the housing
trust fund may be used for any activity approved by COAH or the Court
to address the Township of Mannington'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, market to affordable, or 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, or
any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through
8.9 and specified in the approved spending plan.
B.
Funds shall not be expended to reimburse the Township
of Mannington for past 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.
The use of development fees in this manner shall entitle the Township
of Mannington to bonus credits pursuant to N.J.A.C. 5:97-3.7.
(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 Mannington 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. 5:96-18.
E.
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 COAH's monitoring requirements. Legal or other fees
related to litigation opposing affordable housing sites or objecting
to the Council's regulations and/or action are not eligible uses of
the Affordable Housing Trust Fund.
The Township of Mannington 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 barrier-free escrow funds, rental income, repayments from
affordable housing program loans, and any other funds collected in
connection with the Township of Mannington's housing program, as well
as to the expenditure of revenues and implementation of the plan approved
by the court. All monitoring reports shall be completed on forms designed
by COAH.
The ability of the Township of Mannington to
impose, collect and expend development fees shall expire with its
judgment of compliance unless the Township of Mannington has filed
an adopted Housing Element and Fair Share Plan with COAH, has petitioned
COAH for substantive certification, or brought a declaratory relief
action in court pursuant to N.J.S.A. 52:27D-313 and has received approval
of its development fee ordinance by COAH or a court. If the Township
of Mannington 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 Mannington 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 Mannington retroactively impose a development fee on such
a development. The Township of Mannington shall not expend development
fees after the expiration of its judgment of compliance.