Township of Chesterfield, NJ Article XV Schedule of Fees and Escrow Sums

§ 130-110 Generally.

[Amended 9-27-2001 by Ord. No. 2001-23; 7-8-2004 by Ord. No. 2004-11; 8-12-2004 by Ord. No. 2004-12; 11-12-2009 by Ord. No. 2009-22; 3-25-2010 by Ord. No. 2010-4]

The required submission fees and escrow sums to be deposited at the time a formal application for development or other relief under the ordinance is filed shall be as set forth in § 110-130.

§ 130-111 Professional review fees.

[Amended 7-26-2018 by Ord. No. 2018-17]

Professional review fees shall be governed by and are set forth at § 110-130 governing "land development" fees, which amount shall be in conformity with the provisions of N.J.S.A. 40:55D-53.2, Subdivision a.

§ 130-112 Administration of professional review fees.

A. The applicant shall be obligated to reimburse the Township for all reasonable professional review fees and costs, which fees and costs are set forth in N.J.S.A. 40:55D-53.2, that would be required for the inspection of both on-tract as well as off-tract improvements. Application and escrow fees for professional review are set forth above. For all applications, the Township may require deposits for inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of the improvements, which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4. For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the applicant, be paid in two installments. The initial amount deposited by an applicant shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the applicant has been reduced by the amount paid to the professionals for their inspection and review, the applicant shall deposit the remaining 50% of the anticipated inspection fees. For those developments for the reasonably anticipated fees of $10,000 or greater, fees may, at the option of the applicant, be paid in four installments. The initial amount deposited by an application shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the applicant has been reduced by the amount paid to the professionals for inspection and review, the applicant shall make additional deposits of 25% of the reasonably anticipated fees. The Township Engineer shall not perform any inspection and the Township/Approving Authority's Attorneys shall not conduct any review if sufficient funds to pay for those inspections/reviews are not on deposit.

B. As a condition of approval for an application for development, the applicant shall be required to promptly pay all professional review fees billed in excess of the required application escrows and in no event later than 30 days from the date of receipt of a final voucher from the Township. This condition of approval shall be binding upon the applicant, the owner and any successors and/or assigns of either.

§ 130-113 Publication of decision.

The applicant shall be required to pay a fee of $50 for publication of any decision rendered by the Approving Authority.

§ 130-114 Escrow charges and payments.

A. Each payment charged to the deposit for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service and, for each date the service is performed, the hours spent in one-quarter-hour increments, the hourly rate and the expenses incurred.

B. All professionals shall submit vouchers to the Approving Authority on a monthly basis in accordance with schedules and procedures established by the Township Committee.

C. If the services are provided by a municipal employee, the municipal employee shall prepare and submit to the Approving Authority a statement containing the same information as required on a voucher, on a monthly basis.

D. The professional shall send an informational copy of all vouchers or statements submitted to the Approving Authority simultaneously to the applicant if requested. The Township shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements and the cumulative balance of the escrow account.

E. The information shall be provided on a quarterly basis if monthly charges are $1,000 or less or on a monthly basis if monthly charges exceed $1,000. If an escrow account or deposit contains insufficient funds to enable the municipality or Approving Authority to perform required application reviews or improvement inspections, the Township shall provide the applicant with a notice of the insufficient escrow or deposit balance.

F. In order for work to continue on the development or the application the applicant shall, within 14 days of the notice of the insufficient escrow or deposit balance, post a deposit to the account in an amount to be agreed upon by the Township and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

§ 130-115 Guaranties and inspections.

A. No final plat shall be approved by the Approving Authority until all items determined to be in the public interest have either been installed or bonded. Those which have been installed shall have been inspected, certified and approved by the Township Engineer and accepted by the Township Committee and a maintenance guaranty filed and accepted by the Township Committee. Those items required to be bonded shall have been provided for by a performance guaranty accepted and approved by the Township Committee. No maintenance bond shall be accepted on any partially completed facility or for any item which has further work to be completed or which will need to be altered or reworked in any manner due to the installation or connection of any other facility. Any improvements installed prior to final plat application that do not meet the standards of this chapter or other regulations shall be added to the performance guaranty.

B. The applicant shall submit the performance guaranty or guaranties to the Township Engineer, Township Attorney and Township Committee for review and approval by resolution. Final plat submission shall not be made until the performance guaranties have been accepted and approved by the Township Committee. In the event that final approval is by stages or sections, the provisions of this section shall be applied by stage or section.

(1) The performance guaranty shall consist of the following minimum components:

(a) Ten percent of said guaranty shall be by way of cash, except that the developer may, at his option, submit more than 10% of the performance guaranty in cash.

(b) In the event that the developer has chosen not to bond the entire amount of the guaranty by way of cash, then a minimum of 25% shall be by way of an irrevocable letter of credit issued in favor of the municipality, upon a form acceptable to the Township Attorney. The letter of credit shall constitute an unconditional payment obligation of the issuer running solely to the municipality for an express initial period of time in the amount determined pursuant to the performance guaranty calculations made by the Township Engineer; shall be issued by a savings or banking institution authorized to do and doing business in the State of New Jersey; shall be for a period of time of at least one year; and shall permit the Township to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of the Municipal Land Use Law in 30 days or more in advance of the expiration date of said letter of credit or such longer period in advance thereof as is stated in the letter of credit.

(c) To the extent that any portion of the bonded improvements are not posted by way of cash or a letter of credit, the balance shall be posted by way of performance bond in which a developer shall be the principal and the surety shall be an acceptable surety company licensed to do business in the State of New Jersey and acceptable to the Township Committee. Any performance bond issued by a surety company shall be issued in the name of and executed by a representative of the developer on its behalf. In addition, at least one corporate officer, partner, member of a joint venture or other similar entity shall also sign the bond in his individual capacity. If the improvements have not been completed in accordance with the standards or within the stipulated time, but no longer than two years, unless otherwise extended by the Township Committee by resolution, the obligor and surety shall be liable thereon for the reasonable cost of completing the improvements. As a condition or as part of any such extension by the governing body, the amount of any performance guaranty shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the Township Engineer according to the method of calculation set forth at N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.

(2) If the required improvements are not completed or corrected in accordance with the performance guaranty or guaranties, the obligor and surety, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected and the municipality may, either prior to or after the receipt of the proceeds thereof, complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.

(a) Any performance guaranty issued pursuant to this section shall be equal to an amount not to exceed 120% of the cost of installation, which cost shall be determined by the Township Engineer according to the method of calculation set forth at N.J.S.A. 40:55D-53.4 for improvements which the Approving Authority may deem necessary or appropriate, including streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments, as shown on the final map and required by the Map Filing Law, N.J.S.A. 46:23-9.9 et seq., water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping. The Township Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guaranty, which itemized cost estimate shall be appended to each performance guaranty posted by the obligor.

(b) The Township Engineer shall certify to the governing body that the principal has either satisfactorily installed the improvements in accordance with Subsections G and H of this section or that the developer has defaulted, which certification shall be the basis for the Township Committee's action in either accepting or rejecting the improvements, withholding approval or extending the time allowed for installation of the improvements.

C. Prior to construction, the developer shall arrange a preconstruction conference among the developer, contractor and Township Engineer. The Township Engineer shall be notified by registered mail by the developer at least 72 hours in advance of the start of construction. The cost of inspection shall be the responsibility of the developer, who shall make payment to the Township for said inspection fees in accordance with this chapter and N.J.S.A. 40:55D-53, Subdivision h, and who shall further reimburse the Township for all the reasonable inspection fees by submitting a certified check or bank money order to the Township Clerk/Administrator. This fee shall be in addition to the amount of the performance guaranty and all application and other escrow fees as outlined in this chapter and shall be deposited initially in accordance with the schedule set forth in this chapter. Upon completion of the development and all inspections and at the request of the developer, the developer shall receive an accounting of the expended funds and any unspent funds shall be returned to the developer, unless there is a deficiency in other moneys owed to the Township under this chapter, in which case said moneys shall be retained by the Township to satisfy said deficiencies. Moreover, should the initial deposit be insufficient to cover the inspection costs, the developer shall deposit additional sums, upon notice from the Township Clerk/Administrator, in the amounts and pursuant to the procedure set forth in this chapter.

D. No work shall be done without permission from and inspection by the Township Engineer. No underground installation shall be covered until inspected and approved. The Township Engineer's office shall be notified after each of the following phases of the work has been completed so that he may inspect the work: road subgrade; curb and gutter forms; curbs and gutters; road paving (after each coat in the case of priming and sealing); drainage pipes and other drainage structures before backfilling; shade trees and planting strips; street name signs; and monuments.

E. All utility installations installed by utility companies shall not be subject to the inspection requirements or bonding.

F. Occupancy permits will be issued only when required fire alarms, curbs, aprons, utilities, functioning water supply and sewage treatment facilities, gutters and other necessary storm drainage to ensure proper drainage of the lot and surrounding land, fine grading of lots, clearing of sight triangles, soil stabilization, including topsoil and seeding, base course for the street and driveway and sidewalks are installed to serve the lot and structures for which the permit is requested. Streets shall not receive surface course paving until all heavy construction is completed. Shade trees shall not be planted until all grading and earthmoving is completed. A record plan of the as-constructed lot grading shall be provided to the Township Engineer by the applicant, showing the finished lot elevations at all house and property corners, significant low or high points or high points on the lot and the direction of surface water flow. Such plan shall be prepared, signed and sealed by a licensed land surveyor.

G. Request by obligor. Upon substantial completion of all required street improvements (except for the top course) and any appurtenant utility improvements and the connection of the same to the public system, the obligor may request of the Township Committee, in writing, by certified mail addressed in care of the Township Clerk, that the Township Engineer prepare, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty issued pursuant to Subsection B of this section, a list of all uncompleted or all unsatisfactorily completed improvements. If such a request is made, the obligator shall send a copy of the request to the Township Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Township Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Township Committee and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.

(1) The list prepared by the Township Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of and remedy for the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Township Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guaranty relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty pursuant to Subsection B of this section.

(2) In case of any development street which is to be dedicated to the Township, the obligor shall employ the services of a testing laboratory to obtain cores of the street pavement, to test said cores for thickness, composition and density for each pavement material present and to provide a certified report of the results to the Township Engineer. The testing laboratory employed and the number and location of the cores shall be approved by the Township Engineer. In the case of a development storm sewer pipe system which is to be dedicated to the Township, the obligor shall employ a video inspection service to obtain closed-circuit color television examination of the interior of each and every pipe system and provide a color videotape record of the examination to the Township Engineer. The video inspection service provider and the format of the tape shall be approved by the Township Engineer.

(3) Prior to the release of any performance guarantee for any and all projects for which guarantees are posted, and prior to acceptance of dedication of any sanitary sewer systems in the event that guarantees are not posted, the sanitary sewer system and storm sewer system shall be jet-vacuum cleaned, and all debris shall be removed from the pipes. After the pipes are cleaned, the pipes shall be televised by the developer, and a copy of the video showing the cleaned pipes shall be submitted to the Township Engineer for review. Any pipes found to be defective or in need of repair shall be repaired prior to the performance bond/guarantee being released.

[Added 12-30-2010 by Ord. No. 2010-18]

H. Review by Township Committee.

(1) The Township Committee, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Township Engineer or reject any or all of these improvements, upon the establishment in the resolution of cause for rejection and shall approve and authorize the amount of reduction to be made in the performance guaranty relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty pursuant to Subsection B of this section. Reductions shall first be made from the performance bond, letter of credit and cash components of the guaranty in the same proportions as they bear to the full amount of the guaranty. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the Township Committee, the obligator shall be released from all liability, pursuant to its performance guaranty, with respect to those approved improvements except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the performance guaranty posted may be retained to ensure completion and acceptability of all improvements.

(2) If the Township Engineer fails to send or provide the list and report, as requested by the obligor pursuant to Subsection G of this section, within 45 days from receipt of the request, the obligor may apply to a court of competent jurisdiction, in a summary manner, for an order compelling the Township Engineer to provide the list and report within a stated time; and the cost of applying to the court, including reasonable attorneys fees, may be awarded to the prevailing party. If the governing body fails to approve or reject the improvements determined by the Township Engineer to be complete and satisfactory or reduce the performance guaranty for the complete and satisfactory improvements within 45 days from the receipt of the Township Engineer's list and report, the obligor may apply to a court of competent jurisdiction in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guaranty for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty pursuant to Subsection B of this section; and the cost of applying to the court, including reasonable attorneys fees, may be awarded to the prevailing party.

(3) In the event that the obligor fails to complete the improvements within the time required under the guaranty or the approvals or within any extensions thereof granted by the governing body and the governing body is required to demand payment under the letter of credit and/or performance bond, the 10% cash shall be first applied to the bidding, engineering and legal costs associated with completing the improvements and the remaining 90%, whether the same is by way of cash, letter of credit or surety bond, shall thereafter be resorted to, if necessary, for the completion of the improvements and any additional bidding, engineering and legal costs associated therewith. In the event that the performance guaranty is insufficient to cover all of said costs, the developer/applicant shall remain liable for any deficiencies.

I. If any portion of the required improvements is rejected, the Approving Authority may require the obligor to complete or correct such improvements; and, upon completion or correction, the same procedure of notification as set forth in this section shall be followed.

J. Maintenance guaranty. The maintenance guaranty required under Subsection A of this section shall be posted with the governing body for a period not to exceed two years after final acceptance of the improvements, in an amount not to exceed 15% of the cost of the improvements, which cost shall be determined by the Township Engineer according to the method of calculation set forth at N.J.S.A. 40:55D-53.4, as supplemented and amended. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by a maintenance guaranty to another governmental agency, no maintenance guaranty shall be required for such utilities or improvements. The right of any developer or applicant to appeal the Engineer's estimate for purposes of calculating the maintenance guaranty shall be governed by the provisions of N.J.S.A. 40:55D-53.4, as amended and/or supplemented.

[Amended 6-14-2007 by Ord. No. 2007-14]

K. Special guaranty provisions pertaining to trees, shrubbery and vegetation. Any trees, shrubbery and vegetation that die and must be replaced during the performance and maintenance guaranty period(s) shall be replaced with trees, shrubbery and vegetation that have the same size, height, mass, circumference and caliper as the dead materials being replaced to ensure that the replacement materials enjoy the expected maturity which the trees, shrubbery and vegetation being replaced would have enjoyed at the time of replacement had they not died, up to a maximum of 3 ½ inches caliper to four inches caliper.

[Added 11-10-2010 by Ord. No. 2010-16]

L. Shade trees on lands to be dedicated to the Township. Whenever a developer installs shade trees on land that is intended to be dedicated to the Township (such as the grass strip between sidewalks and streets), under circumstances where the Township will be required to replace said trees if they die after the maintenance guaranty is released, thereby necessitating the expenditure of municipal funds, the developer and/or property owner dedicating the property shall post with the Township sufficient funds that will defray the estimated cost of shade tree replacement for a period of 10 years. The Township Engineer shall calculate and establish the amount of the payment and payment must be made as a condition to the release of the performance guarantee. Said ten-year period will commence at the expiration of the maintenance guaranty. Any dispute over the Engineer’s calculation is subject to appeal and review by the Township Committee before the performance guaranty is released.

[Added 11-10-2010 by Ord. No. 2010-16]

§ 130-116 Miscellaneous provisions.

A. If final total square footage is unknown, fees and escrows shall be based upon the maximum floor area permitted under the Township Zoning Ordinances.

B. For site plan involving expansion, additions and modifications of existing buildings, fees and escrow deposits shall be calculated on the area of the expansion, addition or modification only.

C. Development review fees for either subdivision or site plan applications may be proportioned to stages of submittals as approved by the Planning Board.

D. Unexpended escrow deposits for sketch plats and concept plans shall be credited against escrow deposits due upon the filing of an application for development.

§ 130-117 Failure to pay amount due.

If the applicant has failed to pay any amounts due under this chapter, the Township may:

A. Stop construction until such amounts and penalties equal to an interest payment on unpaid bills of 1 1/2% per month, plus Township legal fees and collection charges necessary to collect any unpaid bills are paid.

B. Deny the issuance of any construction permits or certificates of occupancy if such amounts are due and payable.

C. Deem any approval conditioned by the Board having jurisdiction on the applicant's payment of any amounts under this chapter to be null and void as though the Board having jurisdiction had denied such application on the date of conditional approval.

§ 130-118 Close-out procedures.

The following close-out procedures shall apply to all deposits and escrow accounts established under the provisions of P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.), and shall commence after the Approving Authority has granted final approval and signed the subdivision plat or site plan, in the case of application review escrows and deposits or after the improvements have been approved as provided in Section 41 of P .L. 1975, c. 291 (N.J.S.A. 40:55D-53), in the case of improvement inspection escrows and deposits.

A. The applicant shall send written notice by certified mail to the Township and the Approving Authority and to the relevant municipal professional, that the application or the improvements, as the case may be, are completed.

B. After receipt of such note, the professional shall render a final bill to the Approving Authority within 30 days and shall send a copy simultaneously to the applicant if requested.

C. The Township shall render a written final accounting to the applicant on the uses to which the deposit was put within 45 days of receipt of the final bill.

D. Any balances remaining in the deposit or escrow account, including interest in accordance with Section 1 of P.L. 1985, c. 315 (N.J.S.A. 40:55D-53.1), shall be refunded to the developer along with the final accounting.

§ 130-119 Escrow for maintenance of open spaces and improvements.

A. Responsibilities. The applicant shall be responsible for the maintenance of all open space and improvements required to be installed as part of the development project prior to its dedication and acceptance by the Township. By way of example, this maintenance would include, but not be limited to, grass cutting, snow plowing, road repairs, etc.

B. Escrow posting. Upon approval of the development application by the Approving Authority, the applicant shall be required to post funds with the Township in an amount not to exceed the sum of $5,000 which shall be held to insure the proper maintenance of any open space or improvements which are to be dedicated to the Township. In the event that the applicant fails to perform the work required to properly maintain the open space/improvements, the Township shall have the right to draw upon the escrow account for payment of any expenses attendant upon the work required for this maintenance.

C. Submission of bills to applicant. Upon payment of the maintenance expenses from the escrow account, the applicant shall receive a detailed statement of the services rendered and costs expended in connection with the maintenance work that was done and paid for from the escrow account.

D. Insufficient funds. If the escrow account contains insufficient funds to enable the Township to perform the required maintenance work for the open space/improvements that have yet to be dedicated to the Township, the Administrative Officer of the Township shall provide the applicant with a notice of the insufficient escrow balance. In order for work to continue on the development or the application, the applicant shall within 14 days of the notice of the insufficient escrow balance post a deposit to the account in an amount to be determined by the Township. In the interim, any required health and safety maintenance work that is required shall be performed and charged back against the replenishment of the escrow funds.

§ 130-120 Dispute and appeal procedures.

A. An applicant shall notify in writing the governing body with copies to the Township, the Approving Authority and the professional whenever the applicant disputes the charges made by a professional for service rendered to the municipality in reviewing applications for development, review and preparation of documents, inspection of improvements or other charges made pursuant to the provisions of P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.).

B. The governing body or its designee shall within a reasonable time period attempt to mediate any disputed charges.

C. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals established under Section 9 of P.L. 1975, c. 217 (N.J.S.A. 52:27D-127), any charge to an escrow account or a deposit by any municipal professional or consultant or the cost of the installation of improvements estimated by the Municipal Engineer pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).

D. An applicant or his authorized agent shall submit the appeal in writing to the County Construction Board of Appeals. The applicant or his authorized agent shall simultaneously send a copy of the appeal to the Township, the Approving Authority and any professional whose charge is the subject to the appeal.

E. An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by Subdivision c of Section 13 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.2), an informational copy of the voucher, then the applicant shall file his appeal within 60 days from receipt of the municipal statement of activity against the deposit or escrow account required by Subdivision c of Section 13 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.2).

F. An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An applicant making use of this provision need not appeal each charge individually.

G. The County Construction Board of Appeals shall hear the appeal, render a decision thereon and file its decision with a statement of the reasons therefor with the municipality or Approving Authority not later than 10 business days following the submission of the appeal, unless such period of time has been extended with the consent of the applicant.

H. The decision may approve, disapprove or modify the professional charges appealed from. A copy of the decision shall be forwarded by certified or registered mail to the party making the appeal, the Township, the Approving Authority and the professional involved in the appeal.

I. Failure by the Board to hear an appeal and render and file a decision thereon within the time limits prescribed in this subsection shall be deemed a denial of the appeal for purposes of a complaint, application or appeal to a court of competent jurisdiction.

§ 130-121 Rules of construction.

A. Cumulative sum. Where an applicant submits an application involving a combination of approvals, i.e., subdivision application submitted together with a variance request, fees and escrow sums provided in this chapter where an applicant shall present to the Approving Authority sufficient proof that the cost incurred by the Township would not necessitate posting of the specified sums.

B. Waiver. The Approving Authority shall have the power, in appropriate cases, to compromise or waive the escrow sums required by this chapter where an applicant shall present to the Approving Authority sufficient proof that the cost incurred by the Township would not necessitate posting of the specified sums.

§ 130-122 Affordable housing development fees.

[Amended 5-10-2001 by Ord. No. 2001-13; 2-11-2009 by Ord. No. 2009-6[1]]

A. 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 (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.

(2) Pursuant to P.L. 2008, c. 46, § 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 40:55D-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 a COAH-approved spending plan may retain fees collected from nonresidential development.

(3) This section establishes standards for the collection, maintenance and expenditure of development fees pursuant to COAH's regulations and in accordance P.L. 2008, c. 46, §§ 8 and 32 through 28.[2] Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.

[2] Editor's Note: See N.J.S.A. 57:27D-239.2 and N.J.S.A. 40:55D-81 through 40:55D-8.7, respectively.

B. Basic requirements.

(1) This section shall not be effective until approved by COAH pursuant to N.J.A.C. 5:96-5.1.

(2) Chesterfield Township shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and 5:96-5.3.

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 one-hundred-percent affordable development.

COAH or THE COUNCIL

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 consideration in the state.

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 in N.J.A.C. 5:97-8.3.

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 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) Imposed fees.

(a) Developers of nine units or more on land within the transfer of development rights (TDR) receiving zone shall construct low- and moderate-income units on-site pursuant to the mandatory set-aside of 6% of the total number units in the development.

(b) Developers of eight units or fewer on land within the receiving zone shall, in lieu of construction of affordable housing, be assessed a development fee of 1.5% of the equalized assessed value of any eligible residential activity pursuant to § 130-122E of this chapter.

(c) Developers of residential land within the AG Zone and outside of the receiving zone and not participating in the TDC program shall be assessed a development fee of 1.5% of the equalized assessed value of any eligible residential activity pursuant to § 130-122E of this chapter.

(d) Developers of residential land outside of the receiving zone and the AG Zone and not participating in the TDC program shall be assessed a development fee of 1.5% of the equalized assessed value of any eligible residential activity pursuant to § 130-122E of this chapter.

(e) If a "d" variance is granted pursuant to N.J.S.A. 40:55D-7d(5) outside of the receiving zone, then any additional residential units realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of 6% rather than the development fee of 1.5%. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" 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 "d" variance application.

(2) Eligible exaction, ineligible exactions and exemptions for residential development.

(a) 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.

(b) 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.

(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) Developers of residential structures demolished and replaced as a result of fire damage, flood or similar natural disaster shall be exempt from paying a development fee.

(e) Farm buildings and accessory structures associated with agricultural or horticultural use shall be exempt from paying a development fee.

E. Nonresidential development fees.

(1) Imposed fees.

(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) Nonresidential developers, except for developers of the types of development specifically exempted, shall 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 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 the development fee of 2.5%, unless otherwise exempted below.

(b) 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.

(c) 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 Certification/Exemption" form. 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 P.L. 2008, c. 46, shall be subject to it at such time the basis for 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.

(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 Chesterfield Township 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. For nonresidential developments, the developer shall also be provided with a copy of Form N-RDF, "State of New Jersey Non-Residential Development Certification/Exemption," and complete as per the instructions provided.

(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 that development.

(5) The construction official responsible for the issuance of a final certificate of occupancy shall notify 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 the 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 § 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).

(8) Fifty percent of the development fee shall be collected at the time of the 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.

(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. 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. 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 housing trust fund to be maintained by the Chief Financial Officer of the Township 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;

(b) Developer-contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached 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 the Township's affordable housing program.

(3) Within seven days from the opening of the trust fund account, the Township shall provide COAH with written authorization, in the form of a three-party escrow agreement among 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).

(4) All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.

H. Use of funds.

(1) 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'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 5:97-8.9 and specified in the approved spending plan.

(2) Funds shall not be expended to reimburse the Township for past housing activities.

(3) 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.

(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.

(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 use of development fees in this manner shall entitle the Township to bonus credits pursuant to N.J.A.C. 5:97-3.7.

(c) 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.

(4) The 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.

(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 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.

I. Monitoring. The 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 the Township's housing program, as well as 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.

J. Ongoing collection of fees. The ability for the Township to impose, collect and expend development fees shall expire with its substantive certification from COAH or judgment of compliance from the court (as the case may be) unless the Township has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification or the entry of a judgment of compliance from the court and has received COAH's approval of its development fee ordinance. If the Township fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification of its judgment of compliance, it may be subject to forfeiture or 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 § 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Township shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall the Township retroactively impose a development fee on such a development. The Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance.

[1] Editor's Note: This section also repealed Ord. No. 2006-7, adopted 6-8-2006, which amended this section.