The following terms when used in this article shall have the
meanings given in this section:
ACCESSORY APARTMENT
A self-contained residential dwelling unit with a kitchen,
sanitary facilities, sleeping quarters and a private entrance, which
is created within an existing home, or through the conversion of an
existing accessory structure on the same site, or by an addition to
an existing home or accessory building, or by the construction of
a new accessory structure on the same site.
ACT
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.)
ADAPTABLE
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
ADMINISTRATIVE AGENT
The entity designated by the City for the administration
of affordable units in accordance with this article, N.J.A.C. 5:93, and UHAC (N.J.A.C. 5:80-26).
AFFIRMATIVE MARKETING
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
AFFORDABILITY AVERAGE
The average percentage of median income at which restricted
units in an affordable housing development are affordable to very-low-,
low- and moderate-income households.
AFFORDABLE
A sales price or rent level that is within the means of a
very-low-, low- or moderate-income household as defined in N.J.A.C.
5:93-7.4, and, in the case of an ownership unit, that the sales
price for the unit conforms to the standards set forth in N.J.A.C.
5:80-26.6, as may be amended and supplemented, and, in the case of
a rental unit, that the rent for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
AFFORDABLE HOUSING DEVELOPMENT
A development included in or approved pursuant to the Housing
Plan Element And Fair Share Plan or otherwise intended to address
the City's fair share obligation, and includes, but is not limited
to, an inclusionary development, a municipal construction project
or a 100% affordable housing development.
AFFORDABLE HOUSING PROGRAM(s)
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
AFFORDABLE UNIT
A housing unit proposed or created pursuant to the Act and
approved for crediting by the Court and/or funded through an affordable
housing trust fund.
AGE-RESTRICTED UNIT
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that: 1) all the residents of the development where the unit
is situated are 62 years or older; or 2) at least 80% of the units
are occupied by one person that is 55 years or older; or 3) the development
has been designated by the Secretary of the U.S. Department of Housing
and Urban Development as "housing for older persons" as defined in
Section 807(b)(2) of the Fair Housing Act, 42 U.S.C. § 3607.
AGENCY
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
ALTERNATIVE LIVING ARRANGEMENT
A structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include but are not limited
to: transitional facilities for the homeless; Class A, B, C, D, and
E boarding homes as regulated by the New Jersey Department of Community
Affairs; residential health care facilities as regulated by the New
Jersey Department of Health; group homes for the developmentally disabled
and mentally ill as licensed and/or regulated by the New Jersey Department
of Human Services; and congregate living arrangements.
ASSISTED LIVING RESIDENCE
A facility licensed by the New Jersey Department of Health
and Senior Services to provide apartment-style housing and congregate
dining and to assure that assisted living services are available when
needed for four or more adult persons unrelated to the proprietor
and that offers units containing, at a minimum, one unfurnished room,
a private bathroom, a kitchenette and a lockable door on the unit
entrance.
CERTIFIED HOUSEHOLD
A household that has been certified by an administrative
agent as a very-low-, low-household or moderate-income household.
COAH
The New Jersey Council on Affordable Housing established
under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
DCA
The State of New Jersey Department of Community Affairs.
DEFICIENT HOUSING UNIT
A housing unit with health and safety code violations that
require the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
DEVELOPER
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
DEVELOPMENT
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property
as authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27D-301
et seq., and regulated by applicable COAH Rules.
EQUALIZED ASSESSED VALUE
The assessed value of a property divided by the current average
ration 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).
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.
INCLUSIONARY DEVELOPMENT
A development containing both affordable units and market
rate units. This term includes, but is not necessarily limited to:
new construction, the conversion of a nonresidential structure to
residential use and the creation of new affordable units through the
gut rehabilitation or reconstruction of a vacant residential structure.
LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal
to 50% or less of the regional median household income by household
size for the applicable housing region.
LOW-INCOME UNIT
A restricted unit that is affordable to a low-income household.
MAJOR SYSTEM
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building which
include, but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement or load-bearing structural systems.
MARKET-RATE UNITS
Housing not restricted to very-low-, low- and moderate-income
households that may sell or rent at any price.
MEDIAN INCOME
The median income by household size for the applicable housing
region, as adopted annually by COAH or a successor entity approved
by the Court.
MODERATE-INCOME HOUSEHOLD
A household with a total gross annual household income in
excess of 50% but less than 80% of the regional median household income
by household size for the applicable housing region.
MUNICIPAL HOUSING LIAISON
An appointed municipal employee who is responsible for oversight
of the municipal affordable housing program, including overseeing
the administration of affordability controls, the Affirmative Marketing
Plan, monitoring and reporting, and supervising any contracted administrative
agent.
NON-EXEMPT SALE
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a class
A beneficiary and the transfer of ownership by court order.
RANDOM SELECTION PROCESS
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
REGIONAL ASSET LIMIT
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by duly adopted regional income limits published annually
by COAH or a successor entity approved by the Court.
REHABILITATION
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
RENT
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
RESTRICTED UNIT
A dwelling unit, whether a rental unit or ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
UHAC
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26. et seq.
VERY-LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal
to 30% or less of the regional median household income by household
size for the applicable housing region.
WEATHERIZATION
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for purposes of the rehabilitation
program.
The City of Englewood shall comply with the following monitoring
and reporting requirements regarding the status of the implementation
of its Court-approved Housing Element and Fair Share Plan:
A. Beginning one year after the Court's approval of the Spending
Plan, and on every anniversary of that date through July 1, 2025,
the City agrees to provide annual reporting of its Affordable Housing
Trust Fund activity to the 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 (FSHC) and posted on the municipal website,
using forms developed for this purpose by the New Jersey Department
of Community Affairs (NJDCA), Council on Affordable Housing (COAH),
or Local Government Services (NJLGS). The reporting shall include
an accounting of all Affordable Housing Trust Fund activity, including
the source and amount of funds collected and the amount and purpose
for which any funds have been expended.
(1)
Beginning one year after the Judgment of Compliance and Repose
on November 1, 2023, and on every anniversary of that date through
July 1, 2025, the City agrees to provide annual reporting of the status
of all affordable housing activity within the municipality through
posting on the municipal website with a copy of such posting provided
to Fair Share Housing Center, using forms previously developed for
this purpose by COAH, or any other forms endorsed by the Court-appointed
Special Master and FSHC.
(2)
The Fair Housing Act includes two provisions regarding action
to be taken by the City during its ten-year repose period. Pursuant
to the settlement agreement with FSHC, the City will comply with those
provisions as follows:
(a)
For the midpoint realistic opportunity review due on February
1, 2024, as required pursuant to N.J.S.A. 52:27D-313, the City will
post on its municipal website, with a copy provided to Fair Share
Housing Center, a status report as to its implementation of its Plan
and an analysis of whether any unbuilt sites or unfulfilled mechanisms
continue to present a realistic opportunity and if there are changed
circumstances whether the mechanisms to meet unmet need should be
revised or supplemented. Such posting shall invite any interested
party to submit comments to the City, with a copy to Fair Share Housing
Center, regarding whether any sites no longer present a realistic
opportunity and should be replaced and whether the mechanisms to meet
unmet need should be revised or supplemented. Any interested party
may by motion request a hearing before the Court regarding these issues.
(b)
For the review of very-low-income housing requirements required
by N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary
of the City's agreement with FSHC, and every third year thereafter,
the City will post on its municipal website, with a copy provided
to Fair Share Housing Center, a status report as to its satisfaction
of its very-low-income requirements, including the family very-low-income
requirements. Such posting shall invite any interested party to submit
comments to the City and Fair Share Housing Center on the issue of
whether the City has complied with its very-low-income housing obligation
under the terms of the City's agreement with FSHC.
(c)
In addition to the foregoing postings, the City may also elect
to file copies of its reports with COAH or its successor agency at
the state level.
The City of Englewood has determined that it will use the following
mechanisms to satisfy its affordable housing obligations, as follows.
A. Rehabilitation program.
(1)
Englewood City's rehabilitation program shall be designed
to renovate deficient housing units occupied by very-low-, low- and
moderate-income households such that, after rehabilitation, these
units will comply with the New Jersey State Housing Code pursuant
to N.J.A.C. 5:28.
(2)
Both owner-occupied and renter-occupied units shall be eligible
for rehabilitation funds.
(3)
All rehabilitated units shall remain affordable to very-low-,
low- and moderate-income households for a period of 10 years (the
control period). For owner-occupied units the control period will
be enforced with a lien and for renter-occupied units the control
period will be enforced with a deed restriction.
(4)
The City of Englewood shall dedicate a minimum of $10,000 for
each unit to be rehabilitated through this program, reflecting the
minimum hard cost of rehabilitation for each unit.
(5)
The City of Englewood shall designate one or more administrative
agents to administer the rehabilitation program. The administrative
agent(s) shall provide a rehabilitation manual for the owner occupancy
rehabilitation program and a rehabilitation manual for the rental
occupancy rehabilitation program to be adopted by resolution of the
Governing Body and subject to approval of the Court. Both rehabilitation
manuals shall be available for public inspection in the Office of
the Municipal Clerk and in the office(s) of the administrative agent(s).
(6)
Units in a rehabilitation program shall be administered in accordance
with the following:
(a)
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is re-rented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a very-low-, low- or moderate-income household at an affordable
rent and affirmatively marketed pursuant to N.J.A.C. 5:93-9 and UHAC.
(b)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to N.J.A.C. 5:93-9 and UHAC.
(c)
Rents in rehabilitated units may increase annually based on
the standards in N.J.A.C. 5:93-9 or the standards issued by a New
Jersey administrative agency with proper authority to issue such standards.
(d)
Applicant and/or tenant households shall be certified as income-eligible
in accordance with N.J.A.C. 5:93-9 and UHAC, except that households
in owner-occupied units shall be exempt from the regional asset limit.
[Added 7-25-2023 by Ord. No. 23-20]
A. Purpose.
(1)
In Holmdel Builder's Ass'n v. Holmdel City, 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 Council
On Affordable Housing's (COAH) adoption of rules.
(2)
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 40:55D-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 or court of competent jurisdiction and that are now before a
court of competent jurisdiction and have a Court-approved spending
plan may retain fees collected from nonresidential development.
(3)
The purpose of this section is to establish standards for the
collection, maintenance and expenditure of development fees pursuant
to COAH's rules developed in response to P.L. 2008, c. 46, Sections
8 and 32 through 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 40:55D-8.7). Fees
collected pursuant to this section shall be used for the sole purpose
of providing very-low-, 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.
B. Basic requirements.
(1)
The ability to impose, collect and spend development fees is
consistent with the settlement terms and conditions entered into between
the City of Englewood and FSHC and the judgement of compliance and
repose granted by the Court.
(2)
The City of Englewood shall not spend development fees until
the Court has approved a plan for spending such fees in conformance
with N.J.A.C. 5:97-8.10.
(3)
This section shall not be effective until the Court has approved,
and the City has adopted, the section.
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 development.
COURT OR COURT APPROVED ENTITY
The entity that has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state pursuant to the Supreme Court decision
issued in Mount Laurel IV on March 10, 2015.
DEVELOPER
Any person, partnership, association, company or corporation
that is 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 authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27D-301
et seq., and regulated by applicable COAH Rules.
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 Sections 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.
(1)
Within the City of Englewood, 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.
(2)
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.
(a)
However, if the zoning of a site has changed during the immediate
two years prior to the filing of the "d" variance application, then
the base density for the purposes of calculating the bonus development
fee shall be the highest density permitted by right during the two-year
time period preceding the filing of the variance application.
Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees will equal 1.5% of
the equalized assessed value on the first two units, and 6% of the
equalized assessed value for the two additional units, provided that
zoning on the site has not changed during the two-year period preceding
the filing of such a variance application.
(b)
In any case, these fees shall not apply to developments exempt from the collection of development fees in accordance with the provisions specified in §
250-126D(3) of this section, hereinbelow.
(3)
Eligible Exactions, Ineligible Exactions and Exemptions for
Residential Development.
(a)
All affordable housing developments and/or developments that
produce affordable units 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 this section, and any preceding
section permitting the collection of development fees, 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 zoning permit and/or construction
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 construction permit is
issued.
(c)
Any repair, reconstruction, or improvement of a structure, the
cost of which is less than 50% of the market value of the structure
before the improvement or repair is started, shall be exempt from
the payment of development fees. For purposes of this section, "market
value" shall mean the equalized assessed value of the existing improvement
as established by the City Tax Assessor. The cost of the repair, reconstruction,
or improvements shall be determined by an itemized construction cost
estimate prepared and submitted to the Construction Official. The
estimate shall be signed and sealed by an architect or professional
engineer licensed by the State of New Jersey, or where no such professionals
are retained, signed by the contractor or the homeowner. Where prepared
by the homeowner or contractor, the City Engineer may review such
estimates for accuracy. "Substantial improvement" is considered to
commence when the first alteration of any wall, floor, or other structural
part of the building commences, whether or not the alternation affects
the external dimensions of the structure. The term does not, however,
include either:
[1]
Any project for improvement of a structure to comply with existing
state or local building, fire, health, sanitary or safety code specifications
which are solely necessary to assure safe living conditions; or
[2]
Any alteration of a structure listed on the National Register
of Historic Places or a state inventory of historic places, but a
development fee shall be charged for any new dwelling constructed
as a replacement for a previously existing dwelling on the same lot
that was or will be demolished, unless the owner resided in the previous
dwelling for a period of one year or more prior to obtaining a demolition
permit. Where a development fee is charged for a replacement dwelling,
the development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
(d)
Structural alterations that do not increase gross floor area
of a building or structure or increase the equalized assessed value
of a property shall be exempted from paying a development fee.
(e)
Nonprofit organizations constructing residential projects 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.
(f)
Federal, state, county, and local governments shall be exempted
from paying a development fee.
(g)
Homes replaced as a result of a natural disaster such as a fire
or a flood shall be exempt from the payment of a development fee.
(This exemption applies only for the owner of record at the time of
the fire, flood, or natural disaster.)
(h)
In addition to the construction of new principal and/or accessory
buildings, development fees shall be imposed and collected for the
construction of additions or expansions to existing buildings, for
the change or conversion of an existing building to accommodate a
more intense use, and/or for the demolition and replacement of an
existing building, provided that:
[1]
The development fee shall be calculated on the increase in the
equalized assessed value of the improved building.
[2]
No development fee shall be collected for a demolition and replacement
of a residential building resulting from a natural disaster.
[3]
No development fee shall be collected for the construction of
an "accessory structure" which is not a "building," as these terms
are defined in the Englewood City Land Development Ordinance.
E. Nonresidential development.
(1)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specially 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.
(2)
Within all zoning districts, nonresidential developers, except
for developers of the types of development 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.
(3)
Development fees also 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 pre-existing 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 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.
(4)
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 2.5% development fee, unless
otherwise exempted below.
(b)
The 2.5% fee shall not apply to an increase in equalized assessed
value resulting from alterations, change in use within existing building
footprint, reconstruction, renovations, and repairs.
(c)
Nonresidential projects that have received a certificate of
occupancy or general development plan approval or have entered into
a developer's agreement or a redevelopment agreement, all prior
to July 17, 2008 (the effective date of P.L. 2008, c. 46), shall be
exempt from the payment of nonresidential development fees, provided
that an affordable housing fee of at least 1% of the equalized assessed
value of the improvements is included in the development plan, developer's
agreement or redevelopment agreement.
(d)
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-81 through 40:55D-8.7), as specified in the Form
N-RDF "State of New Jersey Nonresidential Development Certification/Exemption."
Any exemption claimed by a developer shall be substantiated by that
developer.
(e)
All nonresidential construction of buildings or structures on
property used by houses of worship, and property used for educational
purposes which is tax-exempt pursuant to N.J.S.A. 54:4-3.6, provided
that the property continues to maintain its tax-exempt status under
that statute for a period of at least three years from the date of
the certificate of occupancy.
(f)
In addition, the following shall be exempt from the imposition
of a nonresidential fee:
[1]
Parking lots and parking structures, regardless of whether the
parking lot or parking structure is constructed in conjunction with
a nonresidential development or as a stand-alone nonresidential development;
[2]
Any nonresidential development which is an amenity to be made
available to the public, including, but not limited to, recreational
facilities, community centers and senior centers as defined in Section
35 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.4), which are developed
in conjunction with or funded by a nonresidential developer;
[3]
Nonresidential construction resulting from a relocation of or
an on-site improvement to a nonprofit hospital or a nursing home facility;
[4]
Projects that are located within a specifically delineated urban
transit hub, as defined pursuant to Section 2 of P.L. 2007, c. 346
(N.J.S.A. 34:1 B-208);
[5]
Projects that are located within an eligible municipality, as
defined under Section 2 of P.L. 2007, c. 346 (N.J.S.A. 34:1B-208),
when a majority of the project is located within a 1/2 mile radius
of the midpoint of a platform area for a light rail system;
[6]
Projects determined by the New Jersey Transit Corporation to
be consistent with a transit village plan developed by a transit village
designated by the New Jersey State Department of Transportation; and
[7]
Commercial farms and Use Group "U" buildings and structures.
(g)
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 set forth in this subsection 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.
(h)
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 City of Englewood as a lien against the
real property of the owner.
(i)
Federal, state, county, and local governments of nonresidential
development shall be exempted from paying a development fee.
F. Collection of fees.
(1)
Englewood City shall collect development fees for affordable
housing in accordance with the following:
(a)
The Planning Board Secretary of Englewood City shall notify
the Englewood City Construction Code Official whenever either a preliminary,
final or other applicable approval is granted to any development which
is subject to the collection of a development fee.
(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," which is to be completed by
the developer as per the instructions provided.
[1]
The City Construction Official shall verify the information
submitted by the nonresidential developer as per the instructions
provided in the Form N-RDF.
[2]
The City Tax Assessor shall verify exemptions and prepare estimated
and final assessments as per the instructions provided in Form N-RDF.
(c)
City Construction Official responsible for the issuance of a
building permit shall notify the City 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 City Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development. The equalized assessed value and
the required development fee shall be estimated by the City Tax Assessor
prior to the issuance of the construction permit, with the understanding
that the estimate of the equalized assessed value is not intended
to establish the equalized assessed value for tax purposes.
(2)
Except as provided in Subsection
E(3) above, 50% of the initially calculated development fee shall be collected at the time of issuance of the construction 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 construction permit and that determined at the time of issuance of the certificate of occupancy.
(3)
The City Construction Official responsible for the issuance
of a final certificate of occupancy shall notify the City Tax Assessor
of any and all requests for the scheduling of a final inspection on
property which is subject to a development fee.
(4)
Within 10 business days of a request for the scheduling of a
final inspection, the City Tax Assessor shall confirm or modify the
previously estimated equalized assessed value of the improvements
of the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
(5)
Should the City 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).
(6)
Upon tender of the remaining development fee, provided the developer
is in full compliance with all other applicable laws, the City shall
issue a final certificate of occupancy for the subject property.
(a)
Regardless of the time of collection of the development fee,
the fee shall be based upon the percentage that applies on the date
that the construction permit is issued.
(b)
The Construction Code Official shall forward all collected development
fees to Englewood City's Chief Financial Officer who shall deposit
such fees into the established Housing Trust Fund.
(7)
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 City of Englewood. 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 City of Englewood.
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)
A Development Fee Ordinance creating a dedicated revenue source
for affordable housing was adopted by the City on April 11, 2007,
by way of Ordinance No. 07-03. Said Development Fee Ordinance established the City's
Affordable Housing Trust Fund that will be continued to be maintained
by the Chief Financial Officer of the City of Englewood for the purpose
of depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
These funds shall be spent in accordance with N.J.A.C. 5:93-8.16 as described in the sections that follow.
(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 a fraction of an
affordable unit, where permitted by ordinance or by agreement with
the City of Englewood;
(b)
Developer contributed funds 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)
Affordable housing enforcement fines and application fees;
(g)
Proceeds from the sale of affordable units; and
(h)
Any other funds collected in connection with the City of Englewood's
affordable housing program.
(i)
The City of Englewood shall provide the Court with written authorization,
in the form of a three-party escrow agreement between the municipality,
the bank with which the affordable housing fees are deposited by the
City and maintained by said bank, and a Court-approved entity to permit
the Court to direct the disbursement of the funds as provided for
in N.J.A.C. 5:93-8.19 and 5:93-8.20.
(j)
All interest accrued in the Affordable Housing Trust Fund shall
only be used to fund eligible affordable housing activities approved
by the Court or a successor agency to COAH.
(k)
In the event of a failure by the City of Englewood 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 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 City of Englewood, or, if not practicable, then within
the County or the Housing Region.
(l)
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 Affordable
Housing Trust Fund or impose such other remedies as may be reasonable
and appropriate to the circumstances.
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 City of Englewood'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, 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 as permitted by the Court and specified in the
approved spending plan.
(2)
Funds shall not be expended to reimburse the City of Englewood
for past housing activities.
(3)
Payments in lieu of constructing affordable housing units when
the affordable housing calculation results in fractional units on
residential and mixed-use sites shall only be used to fund eligible
affordable housing activities within the City.
(4)
At least 30% of all development fees collected and interest
earned shall be used to provide affordability assistance to very-low-,
low- and moderate-income households in affordable units included in
the Housing Element and Fair Share Plan, provided and in accordance
with the following:
(a)
One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
very-low-income households earning 30% or less of the regional median
income by household size for Housing Region 1, in which the City of
Englewood is located.
(b)
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.
(c)
Affordability assistance for very-low-income households earning
30% or less of the regional median income by household size may include
buying down the cost of low- or moderate-income units in the City's
Fair Share Plan to make them affordable to very-low-income 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.
(d)
Payments in lieu of constructing affordable units on-site, if
permitted by ordinance or by agreement with the City of Englewood,
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
(5)
The City of Englewood 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, in accordance
with N.J.A.C. 5:96-18.
(6)
No more than 20% of all revenues collected from the development
fees may be expended on administration, including, but not limited
to, the salaries and benefits for Englewood City employees or consultant
fees necessary to develop or implement a new affordable housing program,
a Housing Element and Fair Share Plan, and/or 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 the Court's monitoring requirements.
(c)
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 Housing Trust Fund.
(7)
Court approval of Englewood's spending plan constitutes
a "commitment" on the part of the City of Englewood for expenditure
of funds pursuant to N.J.S.A. 52:27D-329.2 and 52:27D-329.3 with the
four-year time period for expenditure designated pursuant to those
provisions to commence with the entry of a final Judgment of Repose
in accordance with the provisions of In re Tp. of Monroe, 442 N.J.
Super. 565 (Law Div. 2015) (Aff'd 442 N.J. Super. 563.).
I. Monitoring. Beginning on May 31, 2024, the City of Englewood 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 City), funds from the sale of units with extinguished
controls, barrier free escrow funds, rental income from City-owned
affordable housing units, repayments from 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 development fees and expiration of section.
(1)
The ability for the City of Englewood to impose, collect and
expend development fees shall expire with the expiration of the repose
period covered by its judgment of compliance and repose unless Englewood
City 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 City of Englewood fails to renew its ability to impose
and collect development fees prior to the date of expiration of judgment
of compliance, it may be subject to forfeiture of any or all funds
remaining within its municipal affordable housing trust fund.
(a)
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).
(b)
The City of Englewood 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 City of Englewood retroactively impose a development fee on such
a development.
(c)
The City of Englewood shall not expend any of its collected
development fees after the expiration of its substantive certification
or judgment of compliance.