[HISTORY: Adopted by the Governing Body of the Borough of
Ramsey 9-14-2011 by Ord. No. 18-2011. Amendments noted where applicable.]
GENERAL REFERENCES
Fair Share Plan — See § 13-14.
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 on Affordable Housing's (COAH's) adoption
of rules.
b.
Pursuant to P.L. 2008, c. 46, section 8 (N.J.S.A. 52:27D-32.2) and
the state-wide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1
through 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.
c.
This chapter 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 chapter shall be used for the sole purpose
of providing low- and moderate-income housing. This chapter shall
be interpreted within the framework of COAH's rules on development
fees, codified at N.J.A.C. 5:97-8.
The following terms, as used in this chapter, 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
consideration in the state.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
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 or contract to purchase, or other person having an enforceable
proprietary interest in such land.
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 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.
a.
Imposed fees.
1.
In all zoning districts including but not limited to R-1, R-2, R-3
and R-4 Residence Districts; R-5 Garden Apartment and Townhouse District;
R-5A Garden Apartment District; T-3 and T-6 Townhouse Residence Districts;
B-1 Central Business District, B-1A Business District; B-2 Turnpike
District; B-3 Highway Commercial District; P.U.D. Planned Unit Development
District; I.P. Industrial Park District; L.O. Laboratory and Office
Building District zones, 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 that no increased density is permitted.
2.
Fee when increase in residential density permitted.
(a)
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 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.
(b)
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 exaction 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 net increase in the equalized assessed value of
the improved structure.
[Amended 4-13-2016 by Ord. No.
06-2016]
4.
Owner-occupied residential structures that have been demolished and
replaced as a result of a fire, flood or 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 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 pre-existing 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 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.
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 as the basis for the exemption no longer applies, and
shall make the payment of the nonresidential development fee, in that
event, within three years after that event or after the issuance of
the final certificate of occupancy of the nonresidential development,
whichever is later.
5.
If a property which was exempted from the collection of a nonresidential
development 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 Ramsey 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 development 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 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
assess value of the development.
e.
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.
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 Ramsey 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.
The developer shall pay 100% of the calculated development fee amount
prior to the municipal issuance of a final certificate of occupancy
for the subject property.
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 Ramsey. 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. 54:481 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 Ramsey. 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. 54:84-1 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 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 adaptable 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 Ramsey's affordable
housing program.
c.
Within seven days from the opening of the trust fund account, Ramsey
shall provide COAH with written authorization, in the form of a three-party
escrow agreement between the municipality, TD Banknorth, 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 Ramsey'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
97-8.9 and specified in the approved spending plan.
b.
Funds shall not be expended to reimburse Ramsey 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.
Ramsey 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. Administration 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.
Ramsey 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 Ramsey's housing program, as well
as to the expenditure of revenues and implementation of the plan certified
by COAH. All monitoring reports shall be completed on forms designed
by COAH.
The ability for Ramsey to impose, collect and expend development
fees shall expire with its substantive certification unless Ramsey
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 Ramsey fails to renew
its ability to impose and collect development fees prior to the expiration
of its 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). Ramsey 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 Ramsey retroactively impose a
development fee on such a development. Ramsey shall not expend development
fees after the expiration of its substantive certification.
