A.
Performance guarantee estimate.
[Amended by Ord. No. 1992-1]
(1)
Certification of completion of improvements.
[Amended 4-24-2018 by Ord. No. 18-07]
(a)
No final application for development (whether for an entire
tract or a section thereof) shall be approved by the Board until the
satisfactory completion and performance of all required on-tract improvements
have been certified to the Board by the Township Engineer unless the
owner shall have filed with the Township a performance guarantee assuring
the installation of on-tract improvements on or before an agreed date
as hereinafter provided.
(b)
Required improvements shall include those improvements to be
dedicated to the public and that have not yet been installed as shown
on the approved plans or plat, including streets, pavement, gutters,
curbs, sidewalks, streetlighting, street trees, surveyor's monuments,
as shown on the final map and required by the Map Filing Law, P.L.
1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.), water mains, sanitary sewers,
community septic systems, drainage structures, public improvements
of open space and any grading necessitated by the preceding improvements.
(c)
The Board may also require a performance guarantee to include,
within an approved phase or section of a development, privately owned
perimeter buffer landscaping, as required by this Code or otherwise
imposed as a condition of approval.
(2)
It is the intention of the Township Council
that residents living in each new section of a development be provided
with a lot and/or dwelling unit and tract area that is as complete
as possible with respect to tract and individual lot and/or dwelling
unit improvements. In order to accomplish this objective, and except
as hereafter provided, all remaining improvements shall be completed
as to each category set forth in the performance guarantee to a percentage
extent equal to the percent of lots and/or dwelling units which have
been conveyed in any manner.
(3)
A performance guarantee estimate shall be prepared
by the applicant's engineer and submitted to the Township Engineer
for review and approval, setting forth all requirements for improvements,
as fixed by the Board, and their estimated cost.
B.
Approval by Township Attorney.
(1)
The owner shall present two copies of the performance
guarantee, in an amount equal to 120% of the approved performance
guarantee estimate when secured by a bond or in an amount equal to
100% of the approved performance guarantee when secured by cash or
irrevocable letter of credit, for approval as to form and execution
by the Township Attorney.
(2)
The Township Attorney shall notify the Secretary
of the Board prior to the meeting that the performance guarantee is
properly executed and can be added to the agenda.
C.
Bonding and cash requirements.
(1)
The performance guarantee shall be made payable
and deposited to Ewing Township and shall be in the form of cash,
irrevocable letter of credit or certified check or a performance bond
in which the owner shall be principal, the bond to be provided by
an acceptable surety company licensed to do business in the State
of New Jersey. The Township shall issue its receipt for such deposits
and shall cause the same to be deposited in the name of the Township
to be retained as security for completion of all requirements and
to be returned to the owner on completion of all required work or,
in the event of default on part of the owner, to be used by the Township
to pay the cost and expense of obtaining completion of all requirements.
(2)
Ten percent of the amount of the approved performance
guarantee shall be deposited by the owner in cash with the Township.
The remaining 90% may be in cash, irrevocable letter of credit or
surety bond. In the event of default, the ten-percent fund herein
mentioned shall be first applied to the completion of the requirements,
and the cash or surety bond shall thereafter be resorted to, if necessary,
for the completion of the requirements. The cash or surety bond shall
recite the foregoing provisions.
D.
Inspection and tests.
[Amended by Ord. No. 1982-2; Ord. No. 1991-11]
(1)
All site improvements and utility installations
for both site plans and subdivisions shall be inspected during the
time of their installation under the supervision of the Township Engineer,
or other designated Township official, to ensure satisfactory completion.
The cost of the inspection shall be the responsibility of the owner,
who shall pay to the Township Treasurer a sum equal to 5% of the amount
of the estimated costs of the required improvements for payment of
the inspection costs; 10% where the amount of the estimated costs
is from zero to $25,000; 7% where the amount of the estimated costs
is from $25,001 to $50,000; and 5% where the estimated costs exceed
$50,001.
(a)
The escrow associated with inspection fees shall
be replenished whenever the original amount is reduced by charges
or anticipated charges against the account to 25% or less of the original
amount. The Engineer shall notify the applicant or owner to replenish
the escrow, and the applicant or owner shall, upon request of the
Engineer, deposit up to 100% of the original escrow account.
(2)
In no case shall any paving work be done without
permission from the Township Engineer. At least two working days'
notice shall be given to the Township Engineer prior to any construction
so that he/she or a qualified representative may be present at the
time the work is to be done.
(3)
Streets should not be paved with a wearing course
until all heavy construction is completed. Shade trees shall not be
planted until all grading and earthmoving is completed. The seeding
of grass and the placing of surveyor's monuments shall be among the
last operations.
(4)
The Township Engineer's office shall be notified
prior to each of the following phases of work so that he/she or a
qualified representative may inspect the work:
(5)
Any improvement installed contrary to the plan
or plat approval by the Township shall constitute just cause to void
the municipal approval.
(6)
Any improvement installed without notice for inspection pursuant to § 215-101D(4) hereinabove shall constitute just cause for:
(a)
Removal of the uninspected improvement;
(b)
The payment by the developer of any costs for
material testing;
(c)
The restoration by the developer of any improvements
disturbed during any material testing; and/or
(d)
The issuance of a stop-work order by the Township
Engineer pending the resolution of any dispute.
(7)
Inspection by the Township of the installation
of improvements and utilities shall not operate to subject the Township
to liability for claims, suits or liability of any kind that may at
any time arise because of defects or negligence during construction
or at any time thereafter; it being recognized that the responsibility
to maintain safe conditions at all times during construction and to
provide proper utilities and improvements is upon the owner and his
contractor, if any.
(8)
Upon the completion or substantial completion
of all required appurtenant utility improvements, and the connection
of same to the public system, the obligor may notify the Township
Council, in writing, by certified mail in care of the Township Clerk,
of the completion or substantial completion of the improvements and
shall simultaneously send a certified copy thereof to the Township
Engineer. Within 10 working days of receipt of the notice, the Township
Engineer shall inspect all the improvements of which such notice has
been given and file a detailed report, in writing, with the Township
Council, indicating either approval, partial approval or rejection
of such improvements with a statement of the reasons for any rejection.
The costs of the improvements as approved or rejected shall be set
forth.
E.
Release. The Township Council shall approve, partially
approve or reject the improvements, on the basis of the report from
the Township Engineer, and shall notify the obligor, in writing, by
certified mail, of the Engineer's report and the action of the Township
Council not later than 65 days after the receipt of the notice of
the obligor of the completion or substantial completion of the improvements.
Failure of the Township Council to send or provide such notification
to the obligor within the 65 days shall be deemed to constitute approval
of the improvements, and the obligor and the surety, if any, shall
be released from all liability pursuant to the performance guarantee
for such improvements.
(1)
Where partial approval is granted, the obligor
shall be released from all liability pursuant to the performance guarantee
for such improvements, except for that portion adequately sufficient
to secure provision of the improvements not yet approved, provided
that 30% of the performance guarantee posted may be retained to ensure
the completion of all improvements and that the 30% may be applied
against all improvements, regardless of when completed.
(2)
If any portion of the required improvements is rejected, the obligor shall complete such improvements and, upon completion, shall notify the Township Council as specified in § 215-101D(8), and the same procedures shall be followed as in the first instance.
(3)
Maintenance guarantees.
[Added 4-24-2018 by Ord.
No. 18-07]
(a)
The developer shall post with the Township, prior to the release of a performance guarantee required pursuant to § 215-101A(1)(a), § 215-101A(1)(c), or both, a maintenance guarantee in an amount not to exceed 15% of the cost of installation of the improvements which are being released.
(b)
The developer shall post with the Township, upon the inspection
and issuance of final approval of the following private site improvements
by the Township Engineer, a maintenance guarantee in an amount not
to exceed 15% of the cost of the installation of the following private
site improvements: stormwater management basins, in-flow and water
quality structures within the basins, and the out-flow pipes and structures
of the stormwater management system, if any, which cost shall be determined
according to the method of calculation set forth in section 15 of
P.L. 1991, c. 256 (C. 40:55D-53.4).
(c)
The term of the maintenance guarantee shall be for a period
not to exceed two years and shall automatically expire at the established
term.
F.
Conditions and acceptance of improvements. The approval
of any application for development by the Township shall in no way
be construed as acceptance of any street or drainage system, or any
other improvement, nor shall such approval obligate the Township in
any way to exercise jurisdiction over such street or drainage system
or other improvement. No improvement shall be accepted by the governing
body unless and until all of the following conditions have been met:
(1)
The Township Engineer shall have certified,
in writing, that the improvements are completed and that they comply
with the requirements of this chapter;
(2)
The final application for development shall
have been approved by the Board;
(3)
The owner shall have filed with the Township Council a maintenance
guarantee in accordance with this section; and
[Amended 4-24-2018 by Ord. No. 18-07]
(4)
An as-built plan and profiles of all utilities,
roads and physical features (three black-and-white prints plus a Mylar
copy to be sent to the Township Engineer), with certification signed
and sealed by a New Jersey licensed professional engineer as to the
actual construction as approved by the Township Engineer, shall be
provided.
(5)
As a condition precedent to the issuance of
a temporary or permanent certificate of occupancy, pursuant to the
Uniform Construction Code of New Jersey, the developer's engineer
shall submit an as-built lot grading plan to the Construction Official.
G.
Safety and stabilization guarantee.
[Added 4-24-2018 by Ord.
No. 18-07]
(1)
A developer shall also furnish to the Township a safety and
stabilization guarantee in favor of the Township. The developer shall
have the option to furnish the safety and stabilization guarantee
as either a separate guarantee or as a line item of the performance
guarantee. The safety and stabilization guarantee shall be available
to the Township solely for the purpose of returning property that
has been disturbed to a safe and stable condition or otherwise implementing
measures to protect the public from access to an unsafe or unstable
condition, only in the circumstance that:
(a)
Site disturbance has commenced and, thereafter, all work on
the development has ceased for a period of at least 60 consecutive
days following such commencement for reasons other than force majeure;
and
(b)
Work has not recommenced within 30 days following the provision
of written notice by the Township to the developer of the Township's
intent to claim payment under the guarantee. The Township shall not
provide notice of its intent to claim payment under a safety and stabilization
guarantee until a period of at least 60 days has elapsed during which
all work on the development has ceased for reasons other than force
majeure. The Township shall provide written notice to the developer
by certified mail or other form of delivery providing evidence of
receipt.
(2)
Safety and stabilization guarantee amounts.
(a)
The amount of a safety and stabilization guarantee for a development
with bonded improvements in an amount not exceeding $100,000 shall
be $5,000.
(b)
The amount of a safety and stabilization guarantee for a development
with bonded improvements exceeding $100,000 shall be calculated as
a percentage of the bonded improvement costs of the development or
phase of development as follows:
(3)
Releases of safety and stabilization guarantees.
(a)
The Township shall release a separate safety and stabilization
guarantee to the developer upon the developer's furnishing of a performance
guarantee which includes a line item for safety and stabilization
in the amount required under this section.
(b)
The Township shall release a safety and stabilization guarantee
upon the Township Engineer's determination that the development of
the project site has reached a point that the improvements installed
are adequate to avoid any potential threat to public safety.
[Added 5-8-2001 by Ord. No. 01-15; amended
11-25-2008 by Ord. No. 08-22; 8-14-2018 by Ord. No.
18-19]
This § 215-102 et seq. establishes standards for the collection, maintenance, and expenditure of development fees that are consistent with COAH's regulations developed in response to P.L. 2008, c. 46, Sections 8 and 32-38 (C. 52:27D-329.2) and the Statewide Nonresidential Development Fee Act (C. 40:55D-8.1 through 8.7). Fees collected pursuant to this § 215-102 et seq. shall be used for the sole purpose of providing very-low- and moderate-income housing in accordance with a Court-approved spending plan.
The following terms, as used in this § 215-102 et seq., 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 100% affordable housing development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
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 authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27d-301
et seq., and regulated by applicable COAH Rules.
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 (C.54:1-35a through C.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.
Imposition of fees.
(1)
Within the Township of Ewing, all residential developers, except
for developers of the types of developments specifically exempted
below and developers of developments that include affordable housing,
shall pay a fee of 1.5% of the equalized assessed value for all new
residential development provided no increased density is permitted.
Development fees shall also be imposed and collected when an additional
dwelling unit is added to an existing residential structure; in such
cases, the fee shall be calculated based on the increase in the equalized
assessed value of the property due to the additional dwelling unit.
(2)
When an increase in residential density is permitted pursuant
to a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers
shall be required to pay a "bonus" development fee of 6% of the equalized
assessed value for each additional unit that may be realized, except
that this provision shall not be applicable to a development that
will include affordable housing. 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.
Eligible exactions, ineligible exactions and exemptions for residential
developments.
(1)
Affordable housing developments and/or developments where the
developer has made a payment in lieu of on-site construction of affordable
units, if permitted by ordinance or by agreement with the Township
of Ewing, shall be exempt from the payment of development fees.
(2)
Developments that have received preliminary or final site plan approval prior to the adoption of this § 215-102 et seq. shall be exempt from the payment of development fees, unless the developer seeks a substantial change in the original approval. Where site plan approval is not applicable, the issuance of a zoning permit and/or construction permit shall be synonymous with preliminary or final site plan approval for the purpose of determining the right to an exemption. In all cases, the applicable fee percentage shall be determined based upon the Development Fee Ordinance in effect on the date that the construction permit is issued.
(3)
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. Where a development fee is charged for a replacement dwelling,
the development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
(4)
Homes replaced as a result of a natural disaster (such as a
fire or flood) shall be exempt from the payment of a development fee.
A.
Imposition of fees.
(1)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, shall pay a fee equal to 2.5% of the equalized assessed value
of the land and improvements, for all new nonresidential construction
on an unimproved lot or lots.
(2)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, shall also pay a fee equal to 2.5% of the increase in equalized
assessed value resulting from any additions to existing structures
to be used for nonresidential purposes.
(3)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the pre-existing land and improvements and the equalized
assessed value of the newly improved structure, i.e. land and improvements,
and such calculation shall be made at the time a 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 a 2.5% development fee, unless otherwise
exempted below.
(2)
The 2.5% development fee shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within the
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 the Statewide Nonresidential Development Fee
Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF
"State of New Jersey Nonresidential Development Certification/Exemption".
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 the Statewide Nonresidential
Development Fee Act shall be subject to the fee 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 for the nonresidential development, whichever is later.
(5)
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 Ewing 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 approving authority or entity shall notify
or direct its staff to notify the Construction Official responsible
for the issuance of a construction permit.
B.
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF "State of New Jersey Nonresidential
Development Certification/Exemption" 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 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 construction
permit shall notify the Township Tax Assessor of the issuance of the
first construction permit for a development which is subject to a
development fee.
D.
Within 90 days of receipt of such notification, the Township Tax
Assessor shall prepare an estimate of the equalized assessed value
of the development based on the plans filed.
E.
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 a
property which is subject to a development fee.
F.
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
associated with the development; calculate the development fee; and
thereafter notify the developer of the amount of the fee.
G.
Should the Township of Ewing 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 (C.40:55D-8.6).
H.
Except as provided in § 215-102.5A(3) hereinabove, 50% of the initially calculated development fee shall be collected at the time of issuance of the construction permit. The remaining portion shall be collected at the time of issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the time of issuance of the construction permit and that determined at the time of issuance of the certificate of occupancy.
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 Ewing. 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
Ewing. 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 Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Township of Ewing 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 a fraction of an
affordable unit, where permitted by ordinance or by agreement with
the Township of Ewing;
(2)
Funds contributed by developers to make 10% of the adaptable
entrances in a townhouse or other multistory attached dwelling unit
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 Ewing's affordable
housing program.
C.
In the event of a failure by the Township of Ewing to comply with
trust fund monitoring and reporting requirements or to submit accurate
monitoring reports; or a failure to comply with the conditions of
the judgment of compliance or a revocation of the judgment of compliance;
or a failure to implement the approved spending plan and to expend
funds within the applicable required time period as set forth in In
re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J.
Super. 563); or the expenditure of funds on activities not approved
by the Court; or for other good cause demonstrating the unapproved
use(s) of funds, the Court may authorize the State of New Jersey,
Department of Community Affairs, Division of Local Government Services
(LGS), to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the Township of Ewing, or, if not practicable, then within
the county or the housing region.
D.
Any party may bring a motion before the Superior Court presenting
evidence of such condition(s), and the Court may, after considering
the evidence and providing the municipality a reasonable opportunity
to respond and/or to remedy the noncompliant condition(s), and upon
a finding of continuing and deliberate noncompliance, determine to
authorize LGS to direct the expenditure of funds in the Trust Fund.
The Court may also impose such other remedies as may be reasonable
and appropriate to the circumstances.
E.
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
A.
The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the Affordable Housing Trust Fund
may be used for any activity approved by the Court to address the
Township of Ewing'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; housing rehabilitation; new
construction of affordable housing units and related costs; accessory
apartments; a market to affordable program; 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; and/or any other activity
permitted by the Court and specified in the approved spending plan.
B.
Funds shall not be expended to reimburse the Township of Ewing for
past housing activities.
C.
At least 30% of all development fees collected and interest earned
on such fees 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 the median income
for Housing Region 4, in which Ewing is located.
(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. The specific programs
to be used for affordability assistance shall be identified and described
within the spending plan.
(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. The specific programs
to be used for very-low-income affordability assistance shall be identified
and described within the spending plan.
(3)
Payments in lieu of constructing affordable housing units on
site, if permitted by ordinance or by agreement with the Township
of Ewing, and funds from the sale of units with extinguished controls
shall be exempt from the affordability assistance requirement.
D.
The Township of Ewing may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including its programs for affordability assistance.
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 consultants' fees
necessary to develop or implement a new construction program, prepare
a Housing Element and Fair Share Plan, and/or administer an affirmative
marketing program or a rehabilitation program.
(1)
In the case of a rehabilitation program, the administrative
costs of the rehabilitation program shall be included as part of the
20% of collected development fees that may be expended on administration.
(2)
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 related
to securing or appealing a judgment from the Court are not eligible
uses of the Affordable Housing Trust Fund.
The Township of Ewing shall provide annual reporting of Affordable
Housing Trust Fund activity to the State of New Jersey, Department
of Community Affairs, Council on Affordable Housing or Local Government
Services or other entity designated by the State of New Jersey, with
a copy provided to Fair Share Housing Center and posted on the municipal
website, using forms developed for this purpose by the New Jersey
Department of Community Affairs, Council on Affordable Housing or
Local Government Services. The reporting shall include an accounting
of all Affordable Housing Trust Fund activity, including the sources
and amounts of funds collected and the amounts and purposes for which
any funds have been expended. Such reporting shall include an accounting
of development fees collected from residential and nonresidential
developers, payments in lieu of constructing affordable units on site
(if permitted by Ordinance or by Agreement with the Township), funds
from the sale of units with extinguished controls, barrier-free escrow
funds, rental income from Township-owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Ewing's affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the spending plan approved by the Court.
A.
The ability for the Township of Ewing to impose, collect and expend
development fees shall expire with the expiration of the repose period
covered by its judgment of compliance unless the Township of Ewing
has first filed an adopted Housing Element and Fair Share Plan with
the Court or with a designated state administrative agency, has petitioned
for a judgment of compliance from the Court or for substantive certification
or its equivalent from a state administrative agency authorized to
approve and administer municipal affordable housing compliance and
has received approval of its Development Fee Ordinance from the entity
that will be reviewing and approving the Housing Element and Fair
Share Plan.
B.
If the Township of Ewing fails to renew its ability to impose and
collect development fees prior to the expiration of its judgment of
compliance, it may be subject to forfeiture of any or all funds remaining
within its Affordable Housing 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 (C. 52:27D-320).
C.
The Township of Ewing shall not impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its judgment of compliance, nor shall
the Township of Ewing retroactively impose a development fee on such
a development. The Township of Ewing also shall not expend any of
its collected development fees after the expiration of its judgment
of compliance.
[Added 6-27-2006
by Ord. No. 06-24]
A.
Purpose and findings. The purpose of this section
is to facilitate the provision of affordable housing in connection
with residential and nonresidential development in compliance with
the New Jersey Council on Affordable Housing Round Three Rules approved
December 20, 2004. This section is based on the following findings
of the Township Council:
(1)
The New Jersey Supreme Court and New Jersey
Legislature have recognized in South Burlington County NAACP v. Mount
Laurel, 92 N.J. 158 (1983) ("Mount Laurel II") and the Fair Housing
Act, N.J.S.A. 52:27D-301 et seq., ("FHA") that New Jersey municipalities
have responsibilities concerning the need to provide affordable housing
for low- and moderate-income households;
(2)
The Legislature conferred upon the New Jersey
Council on Affordable Housing (COAH) "primary jurisdiction for the
administration of housing obligations in accordance with sound regional
planning considerations in this state." [N.J.S.A. 52:27D-304(a)];
(3)
In Mount Laurel II, the New Jersey Supreme Court
ruled that municipalities had the power to address the Mount Laurel
responsibilities that the Court had created through "inclusionary
devices" and rejected the notion "that inclusionary measures amount
to a taking without compensation" (see Mount Laurel II at 271);
(4)
In Mount Laurel II, the Supreme Court also stated,
"[z]oning does not require that land be used for maximum profitability
and, on occasion, the goals may require something less" (see Mount
Laurel II at 274 n. 34);
(5)
In the case entitled Holmdel Builders Association
v. Township of Holmdel, 121 N.J. 550, 582 (1990), the Supreme Court
referred to its Mount Laurel II decision and emphasized that in designing
inclusionary ordinances, "no density bonuses, compensatory benefits,
or subsidies were specifically required;"
(6)
In view of the principles established by the
Supreme Court in these landmark decisions, COAH recently adopted substantive
regulations that authorized municipalities to impose a set-aside,
without any density bonuses or other compensatory benefits, pursuant
to which municipalities could require residential developers to construct
one affordable residential unit for every eight market residential
units the developer constructed [N.J.A.C. 5:94-4.4(a)];
(7)
COAH specifically stated that "a municipality
may adopt a zoning ordinance requiring a maximum of one for every
eight market-rate residential units be affordable to low- and moderate-income
households, as long as the zoning has not allowed an increase in density
to accommodate affordable housing." (36 N.J.R. 5775);
(8)
COAH has also authorized municipalities to require
nonresidential developers to produce affordable housing without any
enhancement or compensatory offsetting benefit based upon a formula
that would require the production of one affordable residential unit
for every 25 jobs projected to be created by the nonresidential development
[N.J.A.C. 5:94-4.4(a)];
(9)
The Township of Ewing wishes to ensure that,
as developers build residential and nonresidential projects, they
provide affordable housing consistent with COAH's regulations and
policies described above, policies soundly rooted in Supreme Court
precedent; and
(10)
Implementation of these policies will ensure
that as the Township grows with housing affordable to the middle and
upper class, it will also grow with housing affordable to lower-income
households, and that as nonresidential development occurs, it will
also provide housing affordable for lower-income workers. (See Mount
Laurel II at 211.)
B.
Applicability.
(1)
This subsection of the Township of Ewing's affordable
housing regulations sets forth mechanisms by which developers shall
provide for a fair share of affordable housing based on growth that
is associated with development taking place within the Township.
(2)
Residential development. Except as exempted in Subsection C, residential projects with nine or more units are subject to the "growth share" provisions of this section and must provide one affordable housing unit on site for every eight market-rate units. Any residential project with fewer than nine units is subject to the Township's development fees as set forth in the Development Fee Ordinance, § 215-102, including those residential projects with fewer than nine units receiving an increase in residential density for which developers will be required to pay a bonus development fee of 6% of the equalized assessed value for residential development rather than the development fee of 1%.
[Amended 12-19-2006
by Ord. No. 06-36]
(3)
Nonresidential development. All nonresidential development in any zone that results in an increase in gross floor area of any existing nonresidential structure or the construction of a new nonresidential structure shall be subject to the Township's development fees as set forth in this § 215-102.
[Amended 12-19-2006
by Ord. No. 06-36]
C.
Exemptions.
(1)
Developments that received preliminary or final approval from the Planning Board and/or Board of Adjustment, as applicable, prior to the effective date of this § 215-102.
(2)
Nonprofit organizations which have received
tax-exempt status pursuant to Section 501(c)(3) of the Internal Revenue
Code, providing that current evidence of that status is submitted
to the Municipal Clerk together with a certification that services
of the organization are provided at reduced rates to those who establish
an inability to pay existing charges.
(3)
Federal, state, county and local governments.
(4)
Public utilities under the jurisdiction of the
New Jersey Board of Public Utilities to the extent that the construction
for which approval is sought is of a facility which shall house equipment
only and not to be occupied by any employees.
(5)
In the case of single-family development, any
new residential construction which has been created as part of an
on-site residential demolition permit shall not be counted towards
the Borough's growth share obligation and is exempt from development
fees.
[Added 12-19-2006
by Ord. No. 06-36]
D.
Residential growth share provisions.
(1)
Quantification of affordable housing obligation for residential developers. Except as otherwise provided below, in those circumstances where an applicant seeks to develop land for residential purposes with projects of nine or more units, and receives no right to increased density or other compensatory bonus, said applicant shall produce and develop on site one residential unit of housing affordable to low- and moderate-income households for every eight market-rate residential units constructed (11.11%). Any residential project with fewer than nine units is subject to the Township's development fees as set forth in this § 215-102.
[Amended 12-19-2006
by Ord. No. 06-36]
(2)
Permissible manner of satisfaction of affordable
housing obligation of residential developers.
(a)
Residential development. For all residential
development with nine or more units, an applicant shall satisfy its
affordable housing production obligation through on-site housing production
in connection with the residential project, which is one of the mechanisms
permitted pursuant to COAH's regulations. By way of example, if a
developer secures approval for a nine-unit project, one of the units
must be reserved as an affordable unit.
[Amended 12-19-2006
by Ord. No. 06-36]
(b)
The other alternative mechanisms permitted under
COAH's regulations include the purchase of an existing market-rate
home at another location in the community and its conversion to an
affordable price-restricted home in accordance with COAH's criteria,
regulations and policies or participation in gut reconstruction and/or
buy-down/write-down, buy-down/rent-down programs. An applicant shall
only be entitled to satisfy its affordable housing obligation via
one or more of the alternative mechanisms set forth above if the applicant
first secures the written authorization of the Township Planning Board
to comply via one or more of these alternative mechanisms.
(c)
Before the applicant's development application
for final site plan or subdivision approval is deemed complete consistent
with the Municipal Land Use Law and this chapter, the applicant must
secure written permission from the Township Planning Board as to the
exact manner in which alternative mechanism(s) will be used to achieve
the creation of one affordable residential unit for every eight market-rate
residential units.
(d)
Full and complete satisfaction of compliance
with the affordable housing requirements of the development shall
be a specific, automatic, essential and nonseverable condition of
all land use approvals. Pursuant to this condition, the applicant
must demonstrate that it has satisfied the Planning or Zoning Board
condition of approval for affordable housing prior to obtaining the
first building permit, and compliance with the affordable housing
condition shall be a continuing condition of all Planning or Zoning
Board approvals for development.
E.
Nonresidential growth-share provisions.
[Amended 12-19-2006
by Ord. No. 06-36]
(1)
Quantification of affordable housing obligation for nonresidential developers. Except as otherwise provided below, in those circumstances where an applicant seeks to develop land for nonresidential purposes and receives no right to an increased floor area ratio (FAR), as defined in § 215-8, Definitions, or other compensatory benefit, the developer shall adhere to the Township's development fees in this § 215-102 and must make a payment to the Township's Mount Laurel Trust Fund at a rate of 2% of the equalized assessed value for the project.
(2)
Full and complete satisfaction of compliance
with the affordable housing requirements of the development shall
be a specific, automatic, essential and nonseverable condition of
all approvals. Pursuant to this condition, the applicant must demonstrate
that it has satisfied the Planning or Zoning Board's affordable housing
condition of approval prior to obtaining the first building permit,
and compliance with the affordable housing condition shall be a continuing
condition of all approvals for development.
F.
G.
General provisions for constructing affordable units.
(1)
The affordable unit(s) to be produced pursuant to Subsections A through F above shall be available to a low-income individual or household should only one affordable unit be required. Thereafter, each of the affordable units shall be divided evenly between low- and moderate-income individuals and households except in the event the applicable formulas result in an odd number of affordable units; in which event the unit shall be a low-income residential unit.
[Amended 12-19-2006
by Ord. No. 06-36]
(2)
Affordable housing units being constructed on
site or off site shall meet the requirements of the Township of Ewing's
Affordable Housing Ordinance and shall be in conformance with COAH's
third round rules at N.J.A.C. 5:94-1 et seq., and the Uniform Housing
Affordability Controls at N.J.A.C. 5:80-26.1 et seq., including, but
not limited to, requirements regarding phasing schedule, controls
on affordability, low/moderate income split, heating source, maximum
rent and/or sales prices, affordability average, bedroom distribution,
and affirmative marketing.
(3)
It shall be the applicant's responsibility,
at its sole cost and expense, to arrange for a COAH- and Township-approved
qualification service to ensure full COAH compliance and to file such
certifications, reports and/or monitoring forms as may be required
by COAH to verify COAH compliance of each affordable unit.
(4)
To the greatest extent possible, affordable
housing units being provided within inclusionary developments shall
be disbursed throughout inclusionary developments and shall be located
within buildings designed to be architecturally indistinguishable
from the market-rate units otherwise being constructed within the
development. To that end, the scale, massing, roof pitch and architectural
detailing (such as the selection of exterior materials, doors, windows,
etc.) of the buildings containing the affordable housing units shall
be similar to and compatible with that of the market-rate units.
(5)
Affordable housing deed restrictions, pricing
and bedroom distributions must be in accordance with Uniform Housing
Affordability Controls ("UHAC") as set forth in N.J.A.C. 5:80-26.1
et seq.
[Amended 12-19-2006
by Ord. No. 06-36]
H.
Permissible manner of satisfaction of affordable housing obligation of mixed-use developers. For all projects which include a combination of both residential and nonresidential development, the affordable housing obligation created by the residential portion of the project is set forth in Subsection D above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection D above. The affordable housing obligation created by the nonresidential portion of the project is set forth in Subsection E above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection E above.
I.
Right to greater set-aside if compensatory benefit.
(1)
As to residential developers, nothing herein
shall affect the Township's ability to generate more affordable housing
than the one-for-eight standard set forth above in the event that
the developer secures a density bonus or other compensatory benefit
through zoning or through a use variance.
(2)
As to nonresidential developers, nothing herein shall affect the Township's ability to generate an increased fee in accordance with the Township's Development Fee Ordinance, § 215-102, in the event that the developer does not secure an increased floor area ratio (FAR) or other compensatory benefit through zoning or through a use variance.
[Amended 12-19-2006
by Ord. No. 06-36]
