[Adopted 12-15-2008 by Ord. No. 2008-24]
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 (the Act), 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.
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 a court of competent jurisdiction and have a COAH-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 P.L. 2008, c.46, Sections 8 and 32 through
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.
[Amended 8-1-2022 by Ord. No. 2022-05]
A.
Imposed fees.
(1)
Within the Township of Woolwich district(s), 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.
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)
Developers of specific types of residential development,
for example developments with one or two owner-occupied dwelling units,
residential structures demolished and replaced as a result of a natural
disaster shall be exempt 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 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.
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 the
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
form. 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 Woolwich Township
as a lien against the real property of the owner.
A.
Residential.
[Amended 12-20-2010 by Ord. No. 2010-26]
(1)
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 official responsible for the
issuance of a building permit.
(2)
The
construction official responsible for the issuance of a building permit
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.
(3)
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.
(4)
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.
(5)
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.
(6)
Should
Woolwich Township 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).
(7)
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 building permit and that determined at issuance of certificate
of occupancy.
(8)
Appeal
of development fees. 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 Woolwich Township.
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.
Nonresidential.
(1)
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 official responsible
for the issuance of a building 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 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 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.
(4)
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.
(5)
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.
(6)
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.
(7)
Should Woolwich Township 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)
The developer shall pay 100% of the calculated development
fee amount prior to the municipal issuance of a final certificate
of occupancy for the subject property.
(9)
Appeal of development fees. 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 Woolwich Township. 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 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 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 Woolwich
Township's affordable housing program.
C.
Within seven days from the opening of the trust fund
account, Woolwich 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. 5:97-8.13(b).
D.
All interest accrued in the Housing Trust Fund shall
only be used on eligible affordable housing activities approved by
COAH.
A.
The expenditure of all funds shall conform to a spending
plan approved by COAH. Funds deposited in the Housing Trust Fund may
be used for any activity approved by COAH to address the Township
of Woolwich'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 Woolwich
Township 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 downpayment
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 may entitle Woolwich Township
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.
Woolwich 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. 5:96-18.
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.
Woolwich Township shall complete and return
to COAH all monitoring forms included in monitoring 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 Woolwich Township's
housing program, as well as to the expenditure of revenues and implementation
of the plan certified by COAH or approved by the court. All monitoring
reports shall be completed on forms designed by COAH.
The ability for Woolwich Township to impose,
collect and expend development fees shall expire with its judgment
of compliance unless Woolwich 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 Woolwich Township fails to renew its ability to
impose and collect development fees prior to the expiration of the
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). Woolwich Township 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 Woolwich Township retroactively impose a development fee
on such a development. Woolwich Township shall not expend development
fees after the expiration of its judgment of compliance.