[Adopted 5-14-2012 by Ord. No. 11-0-12[1]]
[1]
Editor's Note: This ordinance also repealed former Art. III,
Development Fees, adopted 5-10-1999 by Ord. No. 9-0-99.
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 of 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. This term shall also apply to any successor
agency, without the necessity of amending this article.
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 in 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.[1]
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.
[1]
Editor's Note: See N.J.S.A. 54:1-35a through 1-35c.
A.
In Holmdel Builder's Association V. Holmdel Township, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985 ("the
Act"), N.J.S.A. 52:27d-301 et seq and the State Constitution, subject
to the Council of Affordable Housing's (COAH's) adoption
of rules.
B.
Pursuant to P.L. 2008, c. 46 Section 8 (N.J.S.A. 52:27D-329.2) and
the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), COAH is authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that are under the jurisdiction of
the Council or court of competent jurisdiction and have a COAH-approved
spending plan may retain fees collected from nonresidential development.
C.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance with P.L. 2008, c.46, Sections 8 and 32 through
38. Fees collected pursuant to this article shall be used for the
sole purpose of providing low-and moderate-income housing. This article
shall be interpreted within the framework of COAH's rules on
development fees, codified at N.J.A.C. 5:97-8.
A.
Imposed fees.
(1)
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 the residential development, provided no increased
density is permitted.
(2)
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5)
(known as a "d" variance) has been permitted, developers may be required
to pay a development fee of 6% of the equalized assessed value for
each additional unit that may be realized. However, if the zoning
on a site has changed during the two-year period preceding the filing
of such a variance application, the base density for the purposes
of calculating the bonus development fee shall be the highest density
permitted by right during the two-year period preceding the filing
of the variance application.
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Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal 1.5%
of the equalized value on the first two units: and 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.
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B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality, 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)
Owner-occupied residential structures demolished and replaced as
a result of a fire, flood, or natural disaster shall be exempt from
paying a development fee.
A.
Within all zoning districts, nonresidential developers 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 improved
lot or lots.
B.
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.
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.
A.
The nonresidential portion of a mixed-use inclusionary or market-rated
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 the Form N-RDF, "State of New
Jersey Non-Residential Development Certification/Exemption" form.
Any exemption claimed by a developer shall be substantiated by that
developer.
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 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.
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 fees under these circumstances may
be enforceable by Wanaque Borough 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 construction 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 Non-Residential
Development Certification/Exemption" to be completed as per the instructions
provided. The developer of a nonresidential development shall verify
the information submitted by the nonresidential developer as per the
instruction 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 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.
D.
Within 90 days of receipt of that notice, the Municipal Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
E.
The construction official responsible for the issuance of a final
certificate of occupancy notifies the local Assessor of any and all
requests for the scheduling of a final inspection on property which
is subject to a development fee.
F.
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.
G.
Should Wanaque 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 Wanaque Borough. 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 Wanaque Borough.
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 Wanaque 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. The Borough Administrator is hereby authorized
and designated as the official responsible for filing and ensuring
reporting compliance with this article.
B.
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer-contributed funds to make 10% of the adaptable entrances
in townhouse or other multistory attached developments 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 Wanaque Borough's
affordable housing program.
C.
Within seven days from the opening of the trust fund account, Wanaque
Borough shall provide COAH with written authorization, in the form
of a three-party escrow agreement between the municipality, the bank
and COAH to permit COAH to direct the disbursement of the funds as
provided for in N.J.A.C. 5:97-8.13(b).
D.
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by COAH.
A.
The expenditure of all funds shall conform to a spending plan approved
by COAH. Funds deposited in the housing trust fund may be used for
any activity approved by COAH to address the Borough'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,
including special and supportive needs housing, and related costs,
accessory apartments, 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 Wanaque 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.
Wanaque 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. In addition, the Borough of Wanaque may enter into a partnership
with a public or non profit third party for the development of supportive
and/or special needs housing serving developmentally disabled (or
physically disabled) persons.
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.
A.
Wanaque 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 Borough's housing program, as
well as to the expenditure of revenues and implementation of the plan
as certified by COAH or approved by the court. All monitoring reports
shall be completed on forms designed by COAH.
B.
On March 26, 2012, the Borough Administrator filed a certified copy
of the 2011 New Jersey Housing Trust Fund Monitoring Report, said
report having been approved by the New Jersey Department of Community
Affairs.
The ability for Wanaque to impose, collect and expend development
fees shall expire with substantive certification unless Wanaque has
filed an adopted Housing Element and Fair Share Plan with COAH, has
petitioned for substantive certification, and has received COAH's
approval of its development fee ordinance. If Wanaque fails to renew
its ability to impose and collect development fees prior to the expiration
of substantive certification, 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 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 Borough retroactively impose
a development fee on such a development. Wanaque shall not expend
development fees after the expiration of its substantive certification
or judgment of compliance.
