[Added 4-12-2006 by Ord. No. 2006-5;
amended in its entirety 2-25-2009 by Ord. No. 2009-01]
This article establishes standards for the collection,
maintenance, and expenditure of development fees pursuant to the New
Jersey Council on Affordable Housing's (COAH) regulations and in accordance
P.L. 2008, c. 46, Sections 8[1] and 32 through 38.[2] 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.
As used in this article, words and phrases shall
have the same meanings they have pursuant to N.J.A.C. 5:97-1.4, as
said definitions may from time to time be amended.
A.
Whenever a residential development does not contain
an affordable housing component, 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 the residential
development. provided no increased density is permitted.
B.
When an increase in residential density pursuant to
N.J.S.A. 40:55D-70d(5) has been granted by the Zoning Board of Adjustment,
developers may be required to pay a development fee of 6% of the equalized
assessed value for each additional unit that is realized.
C.
Example: If an approval allows two units to be constructed
on a site that was zoned for one unit, the development fee equals
1% of the equalized assessed value and 6% of the equalized assessed
value for the other unit. 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.
A.
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.
B.
Non-residential 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.
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 improvement and the equalized
assessed value of the newly improved structure, i.e. land and improvement,
at the time the 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.
A.
Affordable housing developments, developments where
the developer is providing for the construction of affordable units
elsewhere in the municipality, and developments where the developer
has made a payment in lieu of on-site construction of affordable units
shall be exempt from development fees.
B.
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. A substantial change shall be one where an
amended preliminary or amended final application for development is
required. Where a site plan or subdivision approval is not required,
a zoning and/or building permit shall be equivalent to a preliminary
or final approval of an application for development. The fee percentage
shall be vested on the date that the building permit is issued.
C.
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.
D.
Any developer that is required to make a payment in lieu of construction pursuant to such obligation in accordance with Article VIII shall be exempted from the payment of a development fee for affordable housing.
E.
The nonresidential portion of a mixed-use inclusionary
or market-rate development shall be subject to the two-and-one-half-percent
development fee, unless otherwise exempted below.
F.
The two-and-one-half-percent development fee shall
not apply to an increase in equalized assessed value resulting from
alterations, change in use within existing footprint, reconstruction,
renovations and repairs.
G.
Nonresidential developments shall be exempt from the
payment of nonresidential development fees in accordance with the
exemptions required pursuant to P.L. 2008, c. 46, as specified in
Form N-RDF, "State of New Jersey Non-Residential Development Fee Certification/Exemption."
Any exemption claimed by a developer shall be substantiated by that
developer.
H.
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.
I.
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 Borough of Gibbsboro
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 construction code 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 Fee Certification/Exemption." 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.
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 code 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 Tax 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 Borough 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 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.
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 Borough of
Gibbsboro. Appeals from a determination of the Board may be made to
the Tax Court in accordance with the provisions of the State Uniform
Tax 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
Borough of Gibbsboro. 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 exists a separate, interest-bearing Housing
Trust Fund in the Bank of America, or as may be established in other
such chartered financial institution as the Borough Council shall
determine, to be maintained by the Chief Financial Officer of the
municipality 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.
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 adaptable
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 Gibbsboro's
affordable housing program.
C.
Within seven days from the opening of any new trust
fund account for affordable housing, the Borough of Gibbsboro shall
provide COAH with written authorization, in the form of a three-party
escrow agreement between the municipality, the municipality's financial
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). Nothing herein
shall be deemed to affect any existing affordable housing trust account
so established.
D.
All interest accrued in the Housing Trust Fund shall
only be used on eligible affordable housing activities approved by
a court of competent jurisdiction or COAH in the event of transfer
thereto.
E.
No funds shall be expended from the Affordable Housing
Trust Fund unless the expenditure conforms to a spending plan approved
by a court of competent jurisdiction or COAH in the event of transfer
thereto.
A.
The expenditure of all funds shall conform to a spending
plan approved by a court of competent jurisdiction of COAH in the
event of a transfer thereto. Funds deposited in the Housing Trust
Fund may be used for any activity approved in the spending plan to
address the 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 5:97-8.9 and specified in the approved spending plan.
B.
Funds shall not be expended to reimburse Gibbsboro
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 unless exempted from such requirement
by a court of competent jurisdiction for other purposes of implementing
the housing element and 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.
D.
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.
E.
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.
F.
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.
G.
Gibbsboro shall have the right to 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.
H.
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 actions are not eligible uses
of the Affordable Housing Trust Fund.
A.
Monitoring. Gibbsboro shall complete and return to
COAH all monitoring forms included in such requirements related to
the collection of development fees from residential and nonresidential
developers, payments in lieu of constructing affordable units on site,
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 affordable
housing program, as well as to the expenditure of revenues and implementation
of its housing plan approved by the court. All monitoring reports
shall be completed on forms designed by COAH.
B.
Expiration. The ability for Gibbsboro to impose, collect
and expend development fees shall expire with its judgment of compliance
unless Gibbsboro has filed an adopted housing element and fair share
plan after approval by the court with COAH and has received the court's
approval as to the form of its development fee ordinance. If Gibbsboro
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 N.J.S.A. 52:27D-320.
Gibbsboro shall not impose a residential development fee on an approved
application for development that receives preliminary or final site
plan or subdivision approval after the expiration of its judgment
of compliance, nor shall the municipality retroactively impose a development
fee on such a development. Gibbsboro shall not expend development
fees after the expiration of its judgment of compliance unless so
approved by a court of competent jurisdiction.
