[HISTORY: Adopted by the Mayor and Council of the Borough
of Swedesboro as indicated in article histories. Amendments noted
where applicable.]
[Adopted 1-20-2009 by Ord. No. 3-2009]
A.
In Holmdel Builder's Association v. Holmdel Township, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985, N.J.S.A.
52:27d-301 et seq., and the State Constitution, subject to the rules
adopted by the New Jersey Council on Affordable Housing (COAH).
B.
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and
the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), COAH is authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that are under the jurisdiction of
the Council or court of competent jurisdiction and have an approved
spending plan may retain fees collected from nonresidential development.
C.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance with P.L. 2008, c. 46, Sections 8 and 32-38. Fees
collected pursuant to this article shall be used for the sole purpose
of providing low- and moderate-income housing. This article shall
be interpreted within the framework of COAH's rules on development
fees, codified at N.J.A.C. 5:97-8.
A.
The Borough of Swedesboro shall not impose development fees on any
applicant pursuant to this article until COAH or a court has approved
the Development Fee Ordinance pursuant to N.J.A.C. 5:96-5.1, except
that residential fees may be collected pursuant to the previously
approved fee ordinance until such time as this article takes effect,
and nonresidential fees shall be collected in accordance with the
Statewide Nonresidential Development Fee Act, N.J.S.A. 40:55D-8.1
et seq.
B.
The Borough of Swedesboro shall not spend development fees until
COAH or a court has approved a plan for spending such fees in conformance
with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
The following terms, as used in this article, shall have the
following meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project, or a one-hundred-percent affordable
development.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
considerations in the state.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted under N.J.A.C. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
Those strategies that minimize the impact of development
on the environment, and enhance health, safety and well-being of residents
by producing durable, low-maintenance, resource-efficient housing
while making optimum use of existing infrastructure and community
services.
A.
Imposed fees.
(1)
Within all zoning districts in the Borough of Swedesboro, 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 shall be
required to pay a development fee of 6% of the equalized assessed
value (EAV) for each additional unit above that permitted by right
which 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.
(3)
Example. If an approval allows four units to be constructed on a
site that was zoned for two units, the fees could equal 1 1/2%
of the equalized assessed value on the first two units; and the specified
higher percentage up to 6% of the equalized assessed value for the
two additional units, provided zoning on the site has not changed
during the two-year period preceding the filing of such a variance
application.
B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
Affordable housing developments and developments where the developer
has made a payment in lieu of on-site construction of affordable units
shall be exempt from development fees.
(2)
Developments that have received preliminary or final site plan approval
prior to the adoption of a municipal development fee ordinance shall
be exempt from development fees, unless the developer seeks a substantial
change in the approval. Where a site plan approval does not apply,
a zoning and/or building permit shall be synonymous with preliminary
or final site plan approval for this purpose. The fee percentage shall
be vested on the date that the building permit is issued.
(3)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, or is expanded, if the expansion is not otherwise exempt
from the development fee requirement. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(4)
Nonprofit organizations which have received tax exempt status pursuant
to Section 501(c)(3) of the Internal Revenue Code, providing current
evidence of that status is submitted to the Municipal Clerk, together
with a certification that services of the organization are provided
at reduced rates to those who establish an inability to pay existing
charges, shall be exempted from paying a development fee.
(5)
Federal, state, county and local governments shall be exempted from
paying a development fee.
(6)
The owner of a residential unit who rebuilds when the owner's
existing dwelling unit was destroyed due to fire, flood or other 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 final certificate of occupancy is issued. If the calculation
required under this section results in a negative number, the nonresidential
development fee shall be zero.
B.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(1)
The nonresidential portion of a mixed-use inclusionary or market-rate
development shall be subject to the development fee of 2.5% , unless
otherwise exempted below.
(2)
The fee of 2.5% shall not apply to an increase in equalized assessed
value resulting from alterations, change in use within existing footprint,
reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from payment of nonresidential
development fees in accordance with the exemptions required pursuant
to P.L. 2008, c. 46, as specified in the Form N-RDF "State of New
Jersey Nonresidential 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 the Borough of Swedesboro as a lien against
the real property of the owner.
A.
Upon the granting of a preliminary, final or other applicable approval,
for a development, the applicable approving authority shall direct
its staff to notify the Borough's Construction Code Official
responsible for the issuance of a building permit.
B.
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF "State of New Jersey 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 Code
Official shall verify the information submitted by the nonresidential
developer as per the instructions provided in the Form N-RDF. The
Tax Assessor shall verify exemptions and prepare estimated and final
assessments as per the instructions provided in Form N-RDF.
C.
The Construction Code Official responsible for the issuance of a
building permit shall notify the County Tax Assessor of the issuance
of the first building permit for a development which is subject to
a development fee.
D.
Within 90 days of receipt of that notice, the County Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
E.
The Construction Code Official responsible for the issuance of a
final certificate of occupancy shall notify the County Assessor of
any and all requests for the scheduling of a final inspection on property
which is subject to a development fee.
F.
Within 10 business days of a request for the scheduling of a final
inspection, the County Assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development;
calculate the development fee, and thereafter notify the developer
of the amount of the fee.
G.
Should the Borough of Swedesboro fail to determine or notify the
developer of the amount of the development fee within 10 business
days of the request for final inspection, the developer may estimate
the amount due and pay that estimated amount consistent with the dispute
process set forth in Subsection b of Section 37 of P.L. 2008, c. 46
(N.J.S.A. 40:55D-8.6).
H.
Fifty percent of the development fee shall be collected at the time
of issuance of the building permit. The remaining portion shall be
collected at the issuance of the certificate of occupancy. The developer
shall be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of certificate
of occupancy.
I.
Appeal of development fees.
(1)
A developer may challenge residential development fees imposed by
filing a challenge with the County Board of Taxation. Pending a review
and determination by the Board, collected fees shall be placed in
an interest bearing escrow account by the Borough of Swedesboro. Appeals
from a determination of the Board may be made to the tax court in
accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
(2)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest bearing escrow account by the Borough of
Swedesboro. 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 Borough's Chief Financial Officer
for the purpose of depositing development fees collected from residential
and nonresidential developers and proceeds from the sale of units
with extinguished controls.
B.
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer-contributed funds to make 10% of the affordable entrances
in a townhouse or other multistory attached development accessible;
(3)
Rental income from municipally operated units;
(4)
Repayments from affordable housing program loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with the Borough of Swedesboro's
affordable housing program.
C.
Within seven days from the opening of the trust fund account, the
Borough of Swedesboro shall provide COAH with written authorization,
in the form of a three-party escrow agreement between the municipality,
the Borough's banking institution, and COAH to permit COAH to
direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).
D.
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by COAH or the
court.
A.
The expenditure of all funds shall conform to a spending plan approved
by COAH or the court. Funds deposited in the housing trust fund may
be used for any activity approved by COAH or the court to address
the Borough of Swedesboro's fair share obligation and may be
set up as a grant or revolving loan program. Such activities include,
but are not limited to: preservation or purchase of housing for the
purpose of maintaining or implementing affordability controls, rehabilitation,
new construction of affordable housing units and related costs, accessory
apartment, market to affordable, or regional housing partnership programs,
conversion of existing nonresidential buildings to create new affordable
units, green building strategies designed to be cost saving and in
accordance with accepted national or state standards, purchase of
land for affordable housing, improvement of land to be used for affordable
housing, extensions or improvements of roads and infrastructure to
affordable housing sites, financial assistance designed to increase
affordability, administration necessary for implementation of the
Housing Element and Fair Share Plan, or any other activity as permitted
pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved
spending plan.
B.
Funds shall not be expended to reimburse the Borough of Swedesboro
for past housing activities.
C.
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the municipal Fair Share
Plan. One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
(1)
Affordability assistance programs may include down payment assistance,
security deposit assistance, low-interest loans, rental assistance,
assistance with homeowners' association or condominium fees and
special assessments, and assistance with emergency repairs.
(2)
Affordability assistance to households earning 30% or less of median
income may include buying down the cost of low- or moderate-income
units in the municipal Fair Share Plan to make them affordable to
households earning 30% or less of median income.
(3)
Payments in lieu of constructing affordable units on site and funds
from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
D.
The Borough of Swedesboro may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including the requirement for affordability assistance, in accordance
with N.J.A.C. 5:96-18.
E.
No more than 20% of all revenues collected from development fees
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or consultant fees necessary
to develop or implement a new construction program, a Housing Element
and Fair Share Plan, and/or an affirmative marketing program. In the
case of a rehabilitation program, no more than 20% of the revenues
collected from development fees shall be expended for such administrative
expenses. Administrative funds may be used for income qualification
of households, monitoring the turnover of sale and rental units, and
compliance with COAH's monitoring requirements. Legal or other
fees related to litigation opposing affordable housing sites or objecting
to the Council's regulations and/or action are not eligible uses
of the Affordable Housing Trust Fund.
The Borough of Swedesboro shall complete and return to COAH
all monitoring forms included in the annual monitoring report related
to the collection of development fees from residential and nonresidential
developers, payments in lieu of constructing affordable units on site,
and funds from the sale of units with extinguished controls barrier
free escrow funds, rental income, repayments from affordable housing
program loans, and any other funds collected in connection with the
Borough of Swedesboro's housing program, as well as to the expenditure
of revenues and implementation of the plan approved by the court.
All monitoring reports shall be completed on forms designed by COAH.
The ability of the Borough of Swedesboro to impose, collect
and expend development fees shall expire with its substantive certification
or judgment of compliance unless the Borough of Swedesboro has filed
an adopted Housing Element and Fair Share Plan with COAH, has petitioned
COAH for substantive certification, or brought a declaratory relief
action in court pursuant to N.J.S.A. 52:27D-313 and has received approval
of its development fee ordinance by COAH or a court. If the Borough
of Swedesboro fails to renew its ability to impose and collect development
fees prior to the expiration of its substantive certification or judgment
of compliance, it may be subject to forfeiture of any or all funds
remaining within its municipal trust fund. Any funds so forfeited
shall be deposited into the "New Jersey Affordable Housing Trust Fund"
established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A.
52:27D-320). The Borough of Swedesboro 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 its judgment of compliance, nor shall the Borough of Swedesboro
retroactively impose a development fee on such a development. The
Borough of Swedesboro shall not expend development fees after the
expiration of its substantive certification or its judgment of compliance.
