Article XIV Fees for Development Applications, Affordable Housing Development Fees, and Inspection Fees

In addition to the nonrefundable application fees, there is hereby created an escrow account, the purpose of which is to defray the costs of application reviews by the Planning Board and Board of Adjustment. The fees required to be paid into the escrow account shall apply regardless of whether the application is to be heard by the Planning Board or by the Board of Adjustment. The escrow account shall be managed in accordance with the provisions of N.J.S.A. 40:55D-53.1 and 53.2.

Before submitting an application for development to either the Board of Adjustment or the Planning Board, the applicant shall be required to make a deposit with the Township's Chief Financial Officer as hereinafter provided and to execute an escrow agreement to defray the cost to the Township of all necessary and reasonable charges incurred for technical and professional reviews on behalf of the municipal agency. All fees required by this Section and any other ordinance or section of this chapter shall be paid prior to an application being considered complete; provided however, that payment of a fee shall not in and of itself be deemed to render an application complete. Escrow deposits shall be payable by separate check and shall be accompanied by a signed escrow agreement.

Insufficient or excess funds. In the event that the amounts required to be posted by this chapter are not sufficient to cover the professional charges to the Township of Delaware, the Township's Chief Financial Officer is empowered to request additional funds as provided at Subsection H(2). In the event the amounts posted as fees shall be in excess of the amount required for all professional reviews, the excess funds shall be returned to the applicant as provided at Subsection H(3).

Subdivision and variance review escrow fees. The following subdivision and variance review escrow fees are hereby required and shall be in addition to site plan review fees when site plan approval is also required.

[Amended 12-27-2004 by Ord. No. 2004-24LU; 12-8-2008 by Ord. No. 2008-28LU; 8-8-2011 by Ord. No. 2011-06LU]

Boundary adjustment and merger/boundary adjustment and exchange: $2,500.

Minor subdivisions: $3,000.

Major subdivision concept plan: $4,500.

Major subdivision preliminary plan including two or fewer lots: $6,000.

Major subdivision preliminary plan including more than two lots: $18,750 plus $1,500 per lot.

Major subdivision final plan including two or fewer lots: $3,000.

(7)

Major subdivision final plan including more than two lots: $9,000 plus $450 per lot.

(8)

Any "d" variance: $4,000 per variance.

(9)

Conditional use: $1,500.

(10)

Up to 3 "c" variances: $1,000. Each additional "c" variance $300.

(11)

All other applications to the Board of Adjustment as specified in § 230-141D: $2,500.

[Amended 6-24-2019 by Ord. No. 2019-15]

(12)

Major solar or photovoltaic energy facilities and structures: $7,500.

[Added 8-8-2011 by Ord. No. 2011-06LU]

Site plan review escrow fees. Site plan review escrow fees shall be based on the estimated costs of improvements, including but not limited to construction and installation costs of grading, pavement, surveyors monuments, drainage structures, storm sewers, sanitary sewers, water mains, fire protection features, streets, gutters, sidewalks, culverts, streetlighting, shade trees and landscaping, parking areas, street signs, sedimentation and erosion control devices, public improvements of open space and any other on-tract improvements.

The following site plan review escrow fees are hereby required and shall be in addition to subdivision and variance review escrow fees, where applicable. In addition to the fees listed below, there shall be a $25 nonrefundable charge to cover the cost of bookkeeping, which charge shall be added to the initial escrow account deposit. Escrow fees for PWSFs are set forth in Subsection E(3) below.

	Estimated Cost of Improvement(s)	Escrow Fee
	$0 to $3,000	20% of total cost
	$3,001 to $5,000	$600 plus 4% of the amount over $3,001
	$5,001 to $25,000	$680 plus 3% of the amount over $5,001
	$25,001 to $50,000	$1,500
	$50,001 to $99,999	$1,700
	$100,000 to $249,999	$1,900
	$250,000 to $499,999	$2,100
	$500,000 to $749,999	$3,300
	$750,000 to $999,999	$4,000
	$1,000,000 and over	$4,000

In the event that preliminary approval of a site plan has been granted, and the applicant subsequently applies for final site plan approval, an additional escrow deposit of $400 shall be payable to the Township of Delaware.

Escrow fees for PWSFs. Escrow fees for PWSFs shall be as follows:

If no newly erected antenna support structure is proposed: $2,000.

If a newly erected antenna support structure is proposed: $15,000.

[Amended 11-9-2015 by Ord. No. 2015-12LU]

Escrow fees as initial deposits.

The fees provided for in this section shall be the sums initially required to be deposited into the escrow account to cover the costs of development application reviews. The establishment of such initial deposits shall not absolve the applicant of the responsibility for replenishing the escrow account as provided at N.J.S.A. 40:55D-53.2, nor shall the escrow fees established herein for development application reviews cover or preclude the payment of any other required fees or escrow deposits required by this chapter.

An application shall not be considered complete until such time as the fees provided for in this section have been deposited with the Township, and the Planning Board or Board of Adjustment, as the case may be, shall not act upon or consider any development application until the initial escrow account deposit has been paid in full.

Charges to escrow account.

The Chief Financial Officer of the Township shall make all of the payments to professionals for services rendered to the Township or municipal agency for review of applications for development, review and preparation of documents, inspection of improvements or other purposes permitted under the provisions of this chapter.

Such fees or charges shall be based upon a schedule established by resolution. The application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the municipality. The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professional or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements. The Township or municipal agency shall not bill the applicant or charge the escrow account for any municipal clerical or administrative functions, overhead expenses, meeting room charges, or any other municipal costs and expenses except as provided for herein, nor shall a municipal professional add any such charges to his bill.

If the salary, staff support and overhead for a municipal professional are provided by the municipality, the charge shall not exceed 200% of the sum of the products resulting from multiplying: the hourly base salary, which shall be established annually by ordinance, of each of the professionals; by the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the municipality when fees are not reimbursed or otherwise imposed on applicants or developers.

Each payment charged to the escrow account for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service, and, for each date, the services performed, the hours spent to one-quarter-hour increments, the hourly rate and the expenses incurred. All professionals shall submit their vouchers to the Chief Financial Officer of the Township on a monthly basis in accordance with schedules and procedures established by the Chief Financial Officer. If the services are provided by a municipal employee, the municipal employee shall prepare and submit to the Chief Financial Officer a statement containing the same information as required on a voucher, on a monthly basis. Each professional shall send an information copy of all vouchers or statements submitted to the Chief Financial Officer simultaneously to the applicant.

All professional charges for review of an application for development, review and preparation of documents or inspection of improvements shall be reasonable and necessary, given the status and progress of the application or construction. Review fees shall be charged only in connection with an application or construction. Review fees shall be charged only in connection with an application for development presently pending before the municipal agency or upon review of compliance with conditions of approval or review of requests for modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any state governmental agency and not under municipal jurisdiction except to the extent consultation with a state agency is necessary due to the effect of state approvals on the subdivision or site plan. Inspection fees shall be charged only for actual work shown on a subdivision or site plan or required by the resolution of approval. Professionals inspecting improvements under construction shall charge only for inspections that are reasonably necessary to check the progress and quality of the work, and such inspections shall be reasonably based on the approved development plans and documents.

If the municipality retains a different professional or consultant in the place of the professional originally responsible for development application review or inspection of improvements, the Township or the municipal agency, as the case may be, shall be responsible for all time and expenses of the new professional to become familiar with the application or the project, and the Township or municipal agency shall not bill the application nor charge the escrow account for any such services.

Account procedures and disputes.

The Chief Financial Officer of the municipality shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements, and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis, if monthly charges are $1,000 or less, or on a monthly basis if monthly charges exceed $1,000.

If an escrow account or deposit contains insufficient funds to enable the municipal agency or Township to perform required application reviews or improvement inspections, the Chief Financial Officer shall provide the applicant with a notice of the insufficient escrow deposit balance. In order for work to continue on the development or the application, the applicant shall, within 10 business days, post a deposit to the account in an amount to be agreed upon by the municipal agency or Township and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

The following closeout procedure shall apply to all escrow accounts. The closeout procedure shall commence after the municipal agency has granted final approval and signed the subdivision plat or site plan, in the case of application review escrows, or after the improvements have been approved, in the case of improvement inspection escrows. The applicant shall send written notice by certified mail to the Chief Financial Officer of the Township, to the municipal agency and to the relevant municipal professionals that the application or the improvements, as the case may be, have been completed. After receipt of such notice, each professional shall render a final bill to the Chief Financial Officer within 30 days and shall send a copy simultaneously to the applicant. The Chief Financial Officer shall render a written final accounting to the applicant on the uses to which the deposit was put within 45 days of receipt of final bill. Any balances remaining in the deposit or escrow account, including interest, in accordance with N.J.S.A. 40:55D-53.1, shall be refunded to the developer along with the final accounting.

An applicant shall notify the governing body in writing with copies to the Chief Financial Officer, the municipal agency and the affected professional whenever the applicant disputes the charges made by a professional for service rendered to the Township or municipal agency in reviewing applications for development, review and preparation of documents, inspection of improvements or other charges made in the implementation and enforcement of this chapter. The governing body, or its designee, shall, within 30 days of such notice, attempt to remediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals any charge to an escrow account by any municipal professional or consultant or the cost of the installation of improvements estimated by the Municipal Engineer pursuant to N.J.S.A. 40:55D-53.4. The procedures for filing an appeal to the County Construction Board of Appeals shall be as set forth at N.J.S.A. 40:55D-53.2.a.

During the pendency of any appeal, the Township or municipal agency shall continue to process, hear, and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance or maintenance guarantees, the issuance of construction permits or certificates of occupancy, or any other approval or permit because an appeal has been filed or is pending under this section. The Chief Financial Officer of the municipality may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment to a professional or consultant who is not an employee of the municipality, the professional or consultant shall reimburse the municipality in the amount of any such disallowed charge.

Tax Map escrow fees. The following Tax Map Escrow fees are hereby required for every application that requires a change to the Tax Map and shall be in addition to application escrow fees and site plan review fees when site plan approval is also required.

[Added 11-9-2015 by Ord. No. 2015-12LU]

Boundary adjustment: $250.

One to three new lots: $450.

Four to seven new lots: $750.

Eight to 12 new lots: $1,000.

Thirteen to 19 new lots: $1,250.

§ 230-135 Affordable housing development fees.

Twenty or more new lots: $2,500 plus $50 per lot over 20 lots.

[Amended 12-27-2004 by Ord. No. 2004-25LU; 9-11-2006 by Ord. No. 2006-07LU; 9-8-2008 by Ord. No. 2008-17LU; 5-11-2009 by Ord. No. 2009-10LU]

Purpose.

In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject to the adoption of Rules by COAH.

Pursuant to N.J.S.A. 52:27D-329.2 (L. 2008, c. 46, § 8) 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 COAH or a court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.

This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance N.J.S.A. 52:27D-329.2 (L. 2008, c. 46, § 8) and N.J.S.A. 40:55D-8.1 through 8.7 (L. 2008, c. 46, §§ 32 through 38). Fees collected pursuant to this section shall be used for the sole purpose of providing 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.

Basic requirements.

This chapter shall not become effective until approved by COAH pursuant to N.J.A.C. 5:96-5.1.

AFFORDABLE HOUSING DEVELOPMENT

The Township shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.

Definitions. The following terms, as used in this section, 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 Township construction project or a one-hundred-percent affordable development.

COAH

The New Jersey Council on Affordable Housing established under the Fair Housing Act which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in the state.

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

Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.

EQUALIZED ASSESSED VALUE

The assessed value of a property divided by the current average ratio of assessed to true value for the Township, as determined in accordance with N.J.S.A. 54:1-35a through 54:1-35c (L. 1973, c.123, §§ 4, 5 and 6).

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.

Residential development fees.

[Amended 7-13-2009 by Ord. No. 2009-14LU]

Imposed fees.

[Amended 6-28-2010 by Ord. No. 2010-06LU]

Within all zoning districts, residential developers, except for developers of the types of development specifically exempted below, shall pay a residential development fee of 1 1/2% of the equalized assessed value of land and improvements [for residential development], provided no increased density is permitted.

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 1 1/2% of the equalized assessed value of the initial "by-right" number of units and 6% of the equalized assessed value for each additional unit that is 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.

Example. If an approval allows four units to be constructed on a site that was zoned for two units, the fees would equal 1 1/2% of the equalized assessed value on the first two units; and shall equal 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.

Eligible exactions, ineligible exactions and exemptions for residential development.

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 the payment of development fees.

Developments that have received preliminary or final site plan approval prior to the adoption of a Township development fee ordinance shall be exempt from the payment of 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.

Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, is expanded or undergoes renovations such as conversions of basements or attics to habitable space, is demolished and replaced, or is expanded, if the expansion is not otherwise exempt from the development fee requirement. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure. [Improvements or additions to existing one- and two-family dwellings on individual lots shall not be required to pay a development fee, 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.]

Developers of residential structures demolished and replaced with a substantially similar residence as a result of an accidental fire or natural disaster shall be exempt from paying a development fee.

Nonresidential development fees.

Imposed fees.

Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2 1/2% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.

[Amended 6-28-2010 by Ord. No. 2010-06LU]

Nonresidential developers, except for developers of the types of development specifically exempted in Subsection E(2)(c) below, shall also pay a fee equal to 2 1/2% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.

Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2 1/2% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvements and the equalized assessed value of the newly improved structure, i.e., land and improvements, at the time the 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.

Eligible exactions, ineligible exactions and exemptions for nonresidential development.

The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to the 2 1/2% development fee, unless otherwise exempted below.

The 2 1/2% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.

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-8.1 through 8.7), as specified in the N-RDF "State of New Jersey Nonresidential Development Certification/Exemption" form. Any exemption claimed by a developer shall be substantiated by that developer.

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 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 development fees under these circumstances may be enforceable by the Township as a lien against the real property of the owner.

Collection procedures.

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.

For nonresidential developments only, the developer shall also be provided with a copy of form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption" to be completed as per the instructions provided. The developer of a nonresidential development shall complete form NRDF 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 Township Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in form N-RDF.

The Construction Official responsible for the issuance of a building permit shall notify the Township Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.

Within 90 days of receipt of that notice, the Township Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.

The Construction Official responsible for the issuance of a final certificate of occupancy shall notify the Township Tax Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.

Within 10 business days of a request for the scheduling of a final inspection, the Township 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.

(7)

Should the Township 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 N.J.S.A. 40:55D-8.6 (L. 2008, c.46, § 37, subsection b).

(8)

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.

(9)

Appeal of development fees.

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. 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.

A developer may challenge nonresidential development fees imposed by a 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. 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.

Affordable housing trust fund.

The Township has established 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.

The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

Payments in lieu of on-site construction of affordable units;

Developer contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;

Rental income from Township operated units;

Repayments from affordable housing program loans;

(e)

Recapture funds;

(f)

Proceeds from the sale of affordable units; and

(g)

Any other funds collected in connection with the Township's affordable housing program.

The Township has provided COAH with written authorization, in the form of a three-party escrow agreement between the Township, 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).

All interest accrued in the Affordable Housing Trust Fund shall only be used on eligible affordable housing activities approved by COAH.

Use of funds.

The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the Affordable Housing Trust Fund may be used for any activity approved by COAH to address the Township's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to: preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.

Funds shall not be expended to reimburse the Township for past housing activities.

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 Township's 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.

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.

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 Township Fair Share Plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner shall entitle the Township to bonus credits pursuant to N.J.A.C. 5:97-3.7.

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.

The Township 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 Township 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 COAH's regulations and/or action are not eligible uses of the affordable housing trust fund.

Monitoring. The Township 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 Township'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.

Ongoing collection of fees.

The ability for the Township to impose, collect and expend development fees shall expire with the expiration of its substantive certification unless the Township 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 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 N.J.S.A. 52:27D-320 (L. 1985, c.222, § 20).

§ 230-136 Deposits for unimproved roadways and other off-site improvements.

The Township 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, nor shall the Township retroactively impose a development fee on such a development. The Township shall not expend development fees after the expiration of its substantive certification.

Deposits for unimproved roadways. All major and minor subdivisions and site plans with frontage on an existing but unimproved Township road shall be required, as an additional fee, to deposit with the Township a sum of money, calculated per frontage foot or per lot, or both, in such amount as the municipal agency shall determine to be appropriate. The amount shall be held by the Township as a trust fund and be expended toward the cost of roadway improvements at such time as the road in question shall be improved. Where special circumstances indicate that such additional fee would be inappropriate, the municipal agency may waive the imposition of such additional fee.

Deposits for other off-site improvements. In connection with major or minor subdivisions, the Planning Board or Board of Adjustment may require additional escrow deposits from the developer for part or all of the cost of off-site improvements such as street improvements, water, sewerage and drainage facilities and easements therefor, located outside the property, where the municipal agency determines that such improvements are reasonable and necessary and would not have been otherwise required except as a result of such subdivision and the construction of improvements within such subdivision. The municipal agency may require an inspection by the Municipal Engineer to determine the necessity and projected cost of such improvements, and the cost thereof shall be paid by the applicant as otherwise provided in this article.

§ 230-137 Performance and maintenance guarantees.

Improvements covered. No final subdivision plat or final site plan shall be granted final approval and/or filed with the County Recording Officer unless the applicant shall have filed with the Township a performance guarantee in an amount of 120% of the cost of installation of all required on-tract improvements, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth at N.J.S.A. 40:55D-53.4 for all improvements which the Municipal Agency has deemed necessary or appropriate including: streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments as shown on the final map and required by the Map Filing Law, P.L. 1960, c.141 (C. 46:23-9.9 et seq.),[1] water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping.

[1]

Editor's Note: Said law was repealed 2011, c. 217. See now N.J.S.A. 46:26B-1 et seq.

Estimate of costs. The Municipal Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

Maintenance guarantee. A maintenance guarantee shall be posted with the governing body for a period not to exceed two years after final acceptance of an improvement, in an amount not to exceed 15% of the cost of the improvement, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth at N.J.S.A. 40:55D-53.4.

Exemptions. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed, or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by Delaware Township for such utilities or improvements.

Time for installation; extensions.

The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the governing body by resolution.

As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth at N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.

If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the municipality for the reasonable costs of the improvements not completed or corrected, and the municipality may either prior to or after the receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.).

Release of performance guarantee.

Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B, a list of all uncompleted or unsatisfactorily completed improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor.

The Municipal Engineer shall thereupon inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request. The list prepared by the Municipal Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Municipal Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B herein.

The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Municipal Engineer, or reject any or all of these improvements upon the establishment in the resolution of cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B herein. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the total performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B, including any contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed 70% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.

If the Municipal Engineer fails to send or provide the list and report as requested by the obligor within 45 days from receipt of the request, the obligor may apply to the Court in a summary manner for an Order compelling the Municipal Engineer to provide the list and report within a stated time and the cost of applying to the Court, including reasonable attorney's fees, may be awarded to the prevailing party.

If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guarantee for the completed and satisfactory improvements within 45 days from the receipt of the Municipal Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the completed and satisfactory improvements and approval of a reduction in the performance guarantee for the approvable completed and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection B herein; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(7)

In the event that the obligor has made a cash deposit with the Township or Municipal Agency as part of the performance guarantee, then any partial reduction granted in the performance guarantee shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

(8)

If any portion of the required improvements is rejected, the Municipal Agency may require the obligor to complete or correct such improvements, and, upon completion or correction, the same procedure of notification, as set forth herein, shall be followed.

(9)

Nothing herein shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the Municipal Engineer.

(10)

In the event that final approval is by stages or sections of the development pursuant to N.J.S.A. 40:55D-38, the provisions of this section shall be applied to each stage or section of the development.

(11)

To the extent that any of the improvements have been dedicated to the Township on the subdivision plat or site plan, the governing body shall be deemed, upon the release of any performance guarantee, to accept dedication for public use of streets or roads and any improvements made thereon according to the approved site plan or subdivision plat, provided that such improvements have been inspected and have received final approval by the Municipal Engineer.

Form of guarantees.

The performance guarantee shall consist of any security which is acceptable to the Planning Board or Zoning Board of Adjustment attorney, including but not limited to a performance bond, letter of credit or cash.

The Board shall accept a performance guarantee or maintenance guarantee which is an irrevocable letter of credit if it:

Constitutes an unconditional payment obligation of the issuer running solely to the municipality for an express initial period of time in the amount determined pursuant to N.J.S.A. 40:55D-53;

Is issued by a banking or savings institute authorized to do and doing business in this state;

Is for a period of time of at least one year; and

Permits the municipality to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of this section 30 days or more in advance of the expiration date of the letter of credit or such longer period in advance thereof as is stated in the letter of credit.

The Township, Zoning Board of Adjustment or Planning Board shall not require that a maintenance agreement be in cash or that more than 10% of the performance guarantee be in cash. A developer may, however, provide, at his own option, some or all of the maintenance guarantee in cash or more than 10% of the performance guarantee in cash.