The duty of administering and enforcing the
provisions of this chapter is hereby conferred upon the Zoning Officer,
who shall have such powers as are conferred by this chapter, and as
reasonable may be implied. In no case shall a development permit be
granted for a subdivision or the construction of or alteration of
any building or site where the proposed construction, alteration or
use thereof would be in violation of any provisions of this chapter.
It shall be the duty of the Administrative Officer or his designee
to cause any building, plans or premises to be inspected or examined
and to order in writing the remedying of any conditions found to exist
in violation of this chapter, and the Officer shall have the right
to enter any buildings or premises during the daytime, or other normal
business hours of the premises, in the course of performing these
duties.
In the application and interpretation of these
regulations, all provisions hereof shall be held to be minimum standards
or requirements adopted for the promotion of the public health, safety,
convenience, and general welfare of the Borough. Whenever the requirements
of these regulations are at variance with the requirements of any
other lawfully adopted rules, regulations or ordinances, the most
restrictive of those imposing the higher standard shall govern.
Chapter 146, Zoning, Chapter
120, Subdivision of Land, and Chapter 69, Land Use Procedures, from the Code of the Borough of Atlantic Highlands, are hereby repealed in their entirety and any portions of other ordinances which contain provisions inconsistent with these regulations are hereby repealed to the extent of such inconsistency, except as provided, and, except that any building permit, variance, conditional use permit, occupancy permit or other permit validly issued pursuant to any such ordinance shall remain valid and effective and shall continue to be governed by the terms and conditions of such ordinance.
All amendments to this chapter and to the Zoning
Map, which forms a part hereof, shall be adopted in accordance
with the provisions of N.J.S.A. 40:55D-1 et seq., as amended and supplemented.
The map and schedule of area, yard and building requirements may be
amended and supplemented by description and reference thereto, without
republication of the entire map or detailed text of the schedule.
A. Protest of amendments. A protest against any proposed
amendment or revision of a zoning ordinance may be filed with the
Municipal Clerk, signed by the owners of 20% or more of the area either:
1) of the lots or land included in such proposed change; or 2) of
the lots or land extending 200 feet in all directions therefrom inclusive
of street space, whether within or without the Borough. Such amendment
or revision shall not become effective following the filing of such
protest except by the favorable vote of 2/3 of all members of the
governing body of the Borough.
Upon adoption of this chapter, and any amendments,
the Municipal Clerk shall file a copy with the Monmouth County Planning
Board as required by N.J.S.A. 40:55D-16. Any zoning ordinance or amendment
or revision which in whole or in part is inconsistent with or not
designed to effectuate the Land Use Plan Element and Housing Plan
Element of the Master Plan shall not take effect until a copy of the
resolution required by N.J.S.A. 40:55D-62 shall be filed with the
Monmouth County Planning Board.
[Added 4-11-2007 by Ord. No. 04-2007; amended 2-11-2009 by Ord. No. 02-2009; 5-22-2019 by Ord. No. 07-2019]
A. Findings and purpose.
(1) 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 adoption of rules
by the Council on Affordable Housing (COAH).
(2) Pursuant to P.L. 2008, c. 46, § 8 (N.J.S.A. 52:27D-329.2)
and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), COAH was 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 were under the jurisdiction of
COAH, and that are now before a court of competent jurisdiction and
have a Court-approved spending plan, may retain and expend fees collected
from both residential and nonresidential development.
(3) This section 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, §§ 8
and 32-38 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential
Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected
pursuant to this section shall be used for the sole purpose of providing
low- and moderate-income housing in accordance with a Court-approved
spending plan.
B. Basic requirements.
(1) This section shall not be effective until approved by the Court.
(2) The Borough of Atlantic Highlands shall not spend development fees
until the Court has approved a plan for spending such fees (spending
plan).
C. Definitions. The following terms, as used in this section, 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 100% affordable housing development.
COAH or THE COUNCIL
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
DEVELOPER
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.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property
as permitted by applicable COAH regulations.
EQUALIZED ASSESSED VALUE
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 §§ 1,
5, and 6 of P.L. 1973, c.123 (N.J.S.A. 54:1-35a through N.J.S.A. 54:1-35c).
GREEN BUILDING STRATEGIES
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 Borough of Atlantic Highlands, all residential developers,
except for developers of the types of developments specifically exempted
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% 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, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality, and/or developments where the developer has made
a payment in lieu of on-site construction of affordable units, if
permitted by ordinance or by agreement with the Borough of Atlantic
Highlands, 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 Atlantic Highlands' first adopted
development fee ordinance 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 building 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 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)
Homes demolished and 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 Nonresidential Development Fee
Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF
"State of New Jersey Nonresidential 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 Nonresidential
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 Borough of Atlantic Highlands 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 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 Nonresidential
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 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 such notification, the Borough 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 shall notify the Borough 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 Borough 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 Borough of Atlantic Highlands 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 § 37 of P.L. 2008,
c.46 (N.J.S.A. 40:55D-8.6).
(8) Fifty percent of the initially calculated development fee shall be
collected at the time of issuance of the building 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 building
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. Such a challenge
must be made within 45 days from the issuance of the certificate of
occupancy. Pending a review and determination by the Board, collected
fees shall be placed in an interest-bearing escrow account by the
Borough of Atlantic Highlands. 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 Borough of
Atlantic Highlands. 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
Borough of Atlantic Highlands 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 affordable units
or of a fraction of an affordable unit, where permitted by ordinance
or by agreement with the Borough of Atlantic Highlands;
(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;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Atlantic Highlands'
affordable housing program.
(3) In the event of a failure by the Borough of Atlantic Highlands 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)
(aff'd 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 (LGS), 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 Borough of Atlantic Highlands, or, if not practicable,
then within the county or the housing region.
(a)
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 LGS 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
Borough of Atlantic Highlands' 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) 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 4, in which Atlantic Highlands 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 Borough of
Atlantic Highlands, and funds from the sale of units with extinguished
controls shall be exempt from the affordability assistance requirement.
(3) The Borough of Atlantic Highlands 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.
(4) 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 Borough of Atlantic Highlands 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
Borough), funds from the sale of units with extinguished controls,
barrier free escrow funds, rental income from Borough owned affordable
housing units, repayments from affordable housing program loans, and
any other funds collected in connection with Atlantic Highlands' 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 Borough of Atlantic Highlands to impose, collect
and expend development fees shall expire with the expiration of the
repose period covered by its judgment of compliance unless the Borough
of Atlantic Highlands 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 Borough of Atlantic Highlands 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 § 20 of P.L.
1985, c. 222 (N.J.S.A. 52:27D-320).
(3) The Borough of Atlantic Highlands 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 Borough of Atlantic Highlands retroactively impose a
development fee on such a development. The Borough of Atlantic Highlands
also shall not expend any of its collected development fees after
the expiration of its judgment of compliance.