[HISTROY: Adopted by the Township Committee of the Township of Montville 11-9-2016 by Ord. No. 2016-32.[1] Amendments noted where applicable.]
[1]
Editor’s Note: This ordinance was adopted as Ch. 170, but was renumbered to maintain the organization of the Code.
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-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 a COAH-approved spending plan may retain fees collected from nonresidential development.
C. 
In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. (2015), the New Jersey Supreme Court found that the COAH administrative process had become nonfunctioning, and as a result, returned primary jurisdiction over affordable housing matters to the trial courts. Until and unless COAH adopts new regulations or a new statute is passed, any and all references to COAH herein shall mean the trial courts or any agency that supersedes COAH.
D. 
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 through 38 (N.J.S.A. 52:27D-329.2 and 40:55D-8.1 through 8.7). 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. 5:93-8.
A. 
This chapter shall not be effective until approved by COAH pursuant to N.J.A.C. 5:93-8.8(a).
B. 
The Township of Montville shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:93-5.1(c) and (d).
[Amended 5-28-2024 by Ord. No. 2024-11]
For purposes of this chapter, the following phrases and words shall have the meanings indicated.
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project, or a one-hundred-percent affordable development.
COAH
The New Jersey Council on Affordable Housing established under the Fair Housing Act, which previously had primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the State. Pursuant to In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. (2015), the New Jersey Supreme Court returned primary jurisdiction over affordable housing matters to the trial courts. As such, until and unless COAH adopts new regulations or a new statute is passed, any and all references to COAH shall mean the trial courts or any agency that supersedes COAH.
DEMOLITION
Any destruction or removal of an existing structure which surpasses the minimum threshold for "partial demolition," as defined in this section, shall be considered demolition for the purposes of this chapter only, and any new construction shall be subject to development fees pursuant to §§ 132-4B(4) and 132-5A(3). (See also "partial demolition.")
DEVELOPER
The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.
DEVELOPMENT FEE
Funds paid by an individual, person, partnership, association, company, or corporation for the improvement of property as permitted in N.J.A.C. 5:93-8.
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.
PARTIAL DEMOLITION
Any act or process that destroys or removes part of an existing structure, where minimally the foundation and two walls that are minimally one story in height along the full dimension (horizontally and vertically) of the front, side or rear elevations of the building or structure remain intact. This definition shall apply solely for the purposes of this chapter. Partial demolition of an existing structure shall not require development fees pursuant to this chapter. However, in the event that the demolition exceeds the minimum threshold for partial demolition and such demolition was not anticipated at the time of permit, all work shall cease and the initial development fee payment per § 132-6H shall be submitted prior to continuation of construction. (See also "demolition.")
A. 
Imposed fees.
(1) 
Residential developers, except for developers of the types of development specifically exempted, shall pay a fee of 1.5% of the equalized assessed value for residential development, provided that no increased density is permitted.
[Amended 8-13-2019 by Ord. No. 2019-32]
(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.
(3) 
Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1.5% 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 that zoning on the site has not changed during the two-year period preceding the filing of such a variance application.
[Amended 8-13-2019 by Ord. No. 2019-32]
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) 
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.
(4) 
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, except that expansion of existing single-family or two-family residences shall be exempt from development fees, unless the expansion, enlargement, or improvement leads to the creation of additional dwelling unit(s). The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
(5) 
Development associated with the agricultural use of property that is qualified for farmland assessment shall be exempt from paying a development fee.
A. 
Imposed fees.
[Amended 8-13-2019 by Ord. No. 2019-32]
(1) 
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 2.5% development fee, unless otherwise exempted below.
[Amended 8-13-2019 by Ord. No. 2019-32]
(2) 
The 2.5% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations, and repairs.
[Amended 8-13-2019 by Ord. No. 2019-32]
(3) 
The 2.5% fee shall not apply to developers of any not-for-profit uses; federal, state, county, and municipal government uses; places of worship; and public schools.
[Amended 8-13-2019 by Ord. No. 2019-32]
(4) 
Development associated with the agricultural use of property that is qualified for farmland assessment shall be exempt from paying a development fee.
(5) 
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." Any exemption claimed by a developer shall be substantiated by that developer.
(6) 
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.
(7) 
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 Township of Montville 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." The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The Construction Official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated 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 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 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 shall notify the Tax 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 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.
G. 
Should the Township of Montville 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-8.6b).
H. 
Thirty-three 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 Township of Montville. 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, R.S. 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 Township of Montville. 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, R.S. 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 Chief Financial Officer for the purpose of depositing development fees collected from residential and non-residential 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 multi-story 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 Township of Montville's affordable housing program.
C. 
Within seven days from the opening of the trust fund account, the Township of Montville 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. 5:93-8.
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 Township of Montville'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. 5:93-8 and specified in the approved spending plan.
B. 
Funds shall not be expended to reimburse the Township of Montville 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 Township of Montville 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.
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 Township of Montville 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 Township of Montville's housing program, as well as to the expenditure of revenues and implementation of the plan certified by COAH or approved by the court. All monitoring reports shall be completed on forms designed by COAH.
The ability for the Township of Montville to impose, collect, and expend development fees shall expire with its substantive certification or judgment of compliance unless the Township of Montville 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 the Township of Montville fails to renew its ability to impose and collect development fees prior to the date of expiration of 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 Township of Montville shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall the Township of Montville retroactively impose a development fee on such a development. The Township of Montville shall not expend development fees after the expiration of its substantive certification or judgment of compliance.