[HISTORY: Adopted by the Township Committee of the Township
of Winslow 12-20-05 as Ord. No. 0-41-05. Amended 8-15-06 by Ord. No. 0-19-06; 10-24-06 by Ord. No. 0-26-06;
8-21-07 by Ord. No. 0-27-07; 9-23-08
by Ord. No. 0-32-08. Amended in
its entirety 9-28-10 by Ord. No. 0-2010-031. Subsequent amendments noted where applicable.]
A.
In Holmdel Builder's Association v. Holmdel Township, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985 (the
"Act"), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject
to the Council on Affordable Housing's ("COAH") adoption of rules.
B.
Pursuant to P.L. 2008, c. 46 section 8 (C. 52:27D-329.2) and the
Statewide Non-Residential Development Fee Act (C. 40:55D-8.1 through
8.7), COAH is authorized to adopt and promulgate regulations necessary
for the establishment, implementation, review, monitoring and enforcement
of municipal affordable housing trust funds and corresponding spending
plans. Municipalities that are under the jurisdiction of the Council
or court of competent jurisdiction and have a COAH-approved spending
plan may retain fees collected from nonresidential development.
C.
This chapter establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance with P.L. 2008, c. 46, Sections 8 and 32-28. Fees
collected pursuant to this chapter shall be used for the sole purpose
of providing low- and moderate-income housing. This chapter shall
be interpreted within the framework of COAH's rules on development
fees, codified at N.J.A.C. 5:97-8.
A.
AFFORDABLE HOUSING DEVELOPMENT
COAH OR THE COUNCIL
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
The following terms, as used in this chapter, shall have the following
meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a one hundred percent (100%) affordable
development.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the State.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5 and 6 of P.L. 1973, c. 123 (C. 54:1-35a through C. 54:1-35c).
Strategies that minimize the impact of development on the
environment and enhance the health, safety and well-being of residents
by producing durable, low-maintenance, resource-efficient housing
while making optimum use of existing infrastructure and community
services.
A.
Imposed fees.
(1)
Within all residential zoning districts, except those outlined in
the growth share ordinance (i.e., R-H, R-M, PR3 and PR4), residential
developers, except for developers of the types of development specifically
exempted below, shall pay a fee of one and one-half percent (1.5%)
of the equalized assessed value for residential development provided
no increased density is permitted.
(2)
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5)
(known as a "d" variance) has been permitted, developers may be required
to pay a development fee of six percent (6%) of the equalized assessed
value for each additional unit that may be realized. However, if the
zoning on a site has changed during the two-year period preceding
the filing of such a variance application, the base density for the
purposes of calculating the bonus development fee shall be the highest
density permitted by right during the two-year period preceding the
filing of the variance application.
Example: If an approval allows four (4) units to be constructed
on a site that was zoned for two (2) units, the fees could equal one
and one-half percent (1.5%) of the equalized assessed value on the
first two (2) units: and the specified higher percentage up to six
percent (6%) of the equalized assessed value for the two (2) additional
units, provided zoning on the site has not changed during the two-year
period preceding the filing of such a variance application.
B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality and developments where the developer has made a payment
in lieu of on-site construction of affordable units shall be exempt
from development fees.
(2)
Developments that have received preliminary or final site plan approval
prior to the adoption of a municipal development fee ordinance shall
be exempt from development fees, unless the developer seeks a substantial
change in the approval. Where a site plan approval does not apply,
a zoning and/or building permit shall be synonymous with preliminary
or final site plan approval for this purpose. The fee percentage shall
be vested on the date that the building permit is issued.
(3)
Owner-occupied residential structures demolished and replaced as
a result of a fire, flood, or natural disaster shall be exempt from
paying a development fee.
(4)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, or is expanded, 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.
(5)
All in-fill single lot development of owner-occupied housing shall
be exempt from paying any development fees under this chapter provided
the lot was owned by the owner and existed on the official tax map
of Winslow Township on or before August 21, 2007.
A.
Imposed fees.
(1)
Within all zoning districts, nonresidential developers, except for
developers of the types of development specifically exempted, shall
pay a fee equal to two and one-half percent (2.5%) of the equalized
assessed value of the land and improvements, for all new nonresidential
construction on an unimproved lot or lots.
(2)
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to two
and one-half percent (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 two and
one-half percent (2.5%) shall be calculated on the difference between
the equalized assessed value of the newly improved structure; i.e.
land and improvement, at the time final certificate of occupancy is
issued. If the calculation required under this section results in
a negative number, the nonresidential development fee shall be zero.
B.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(1)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the two and one-half percent
(2.5%) development fee, unless otherwise exempted below.
(2)
The two and one-half percent (2.5%) fee shall not apply to an increase
in equalized assessed value resulting from alterations, change in
use within existing footprint, reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from the payment of nonresidential
development fees in accordance with the exemptions required pursuant
to P.L. 2008, c. 46 as specified in the Form N-RDF "State of New Jersey,
Non-Residential Development Certification/Exemption" form. Any exemption
claimed by a developer shall be substantiated by that developer.
(4)
A developer of a nonresidential development exempted from the nonresidential
development fee pursuant to P.L. 2008, c. 46 shall be subject to it
at such time the basis for the exemption no longer applies, and shall
make the payment of the non-residential development fee, in that event,
within three (3) years after that event or after the issuance of the
final certificate of occupancy of the non-residential 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 forty-five (45) days of the termination of the
property tax exemption. Unpaid nonresidential development fees under
these circumstances may be enforceable by Winslow Township as a lien
against the real property of the owner.
C.
This chapter is being adopted in accordance with Section 8 of P.L.
2008, c. 46 (N.J.S.A. 52:27D-329.2(a)) and the policies, procedures
and requirements of COAH. Pursuant to COAH's requirements for
approval of a municipal development fee ordinance and the model ordinance
promulgated by COAH, Winslow Township is required to, and has, included
provisions for the assessment and collection of nonresidential development
fees. Notwithstanding the inclusion of such provisions as required
by COAH, Winslow Township acknowledges that recently there have been
legislative enactments impacting upon the collection of nonresidential
development fees, including but not limited to, Sections 32 through
38 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.1 through 40:55D-8.7), known
as the "Statewide Non-Residential Development Fee Act," and Sections
36 through 41 of P.L. 2009, c. 90, known as the "Economic Stimulus
Act of 2009". Winslow Township shall continue to abide by the applicable
law concerning the collection of nonresidential development fees.
A.
Upon the granting of a preliminary, final or other applicable approval,
for a development, the applicable approving authority shall direct
its staff to notify the Construction Official responsible for the
issuance of a building permit.
B.
For nonresidential developments only, the developer shall also be
provided with a copy of a Form N-RDF "State of New Jersey Non-Residential
Development Certification/Exemption" to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The construction official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
C.
The Construction Official responsible for the issuance of a building
permit shall notify the local Tax Assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
D.
Within ninety (90) days of receipt of that notice, the Municipal
Tax Assessor, based on the plans filed, shall provide an estimate
of the equalized assessed value of the development.
E.
The Construction Official responsible for the issuance of a final
certificate of occupancy notifies the local Assessor of any and all
requests for the scheduling of a final inspection on property which
is subject to a development fee.
F.
Within ten (10) business days of a request for the scheduling of
a final inspection, the Municipal Assessor shall confirm or modify
the previously estimated equalized assessed value of the improvements
of the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
G.
Should Winslow Township fail to determine or notify the developer
of the amount of the development fee within ten (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.
Fifty percent (50%) of the development fee shall be collected at
the time of issuance of the building permit. The remaining portion
shall be collected at the issuance of the certificate of occupancy.
The developer shall be responsible for paying the difference between
the fee calculated at building permit and that determined at issuance
of certificate of occupancy.
I.
Appeal of development fees.
(1)
A developer may challenge residential development fees imposed by
filing a challenge with the County Board of Taxation. Pending a review
and determination by the Board, collected fees shall be placed in
an interest-bearing escrow account by Winslow 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 ninety (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 forty (45) days of receipt of the challenge, collected
fees shall be placed in an interest bearing escrow account by Winslow
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, R.S. 54:48-1 et seq., within ninety (90) days
after the date of such determination. Interest earned on amounts escrowed
shall be credited to the prevailing party.
A.
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Chief Financial Officer of Winslow Township
for the purpose of depositing development fees collected from residential
and nonresidential developers and proceeds from the sale of units
with extinguished controls.
B.
The following additional funds shall be deposited in the affordable
housing trust fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer contributed funds to make ten percent (10%) of the adaptable
entrances in a townhouse or other multistory attached development
accessible;
(3)
Rental income from municipally operated units;
(4)
Repayments from affordable housing loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with Winslow Township's
affordable housing program.
C.
Within seven (7) days from the opening of the trust fund account,
Winslow Township shall provide COAH with written authorization, in
the form of a three-party escrow agreement between the municipality,
the bank linked to the Cash Management Fund and COAH to permit COAH
to direct the disbursement of the funds as provided for in N.J.A.C.
5:97-8.13(b).
D.
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by COAH.
A.
The expenditure of all funds shall conform to a spending plan approved
by COAH. Funds deposited in the housing trust fund may be used for
any activity approved by COAH to address Winslow 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 program, conversion of existing nonresidential
buildings to create new affordable units, green building strategies
designed to be cost saving and in accordance with accepted national
or State standards, purchase of land for affordable housing, improvement
of land to be used for affordable housing, extensions or improvements
of roads and infrastructure to affordable housing sites, financial
assistance designed to increase affordability, administration necessary
for implementation of the Housing Element and Fair Share Plan, or
any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through
8.9 and specified in the approved spending plan.
B.
Funds shall not be expended to reimburse Winslow Township for past
housing activities.
C.
At least thirty percent (30%) of all development fees collected and
interest earned shall be used to provide affordability assistance
to low- and moderate-income households in affordable units included
in the municipal Fair Share Plan. One-third (1/3) of the affordability
assistance portion of development fees collected shall be used to
provide affordability assistance to those households earning thirty
percent (30%) or less of median income by region.
(1)
Affordability assistance programs may include down payment assistance,
security deposit assistance, low interest loans, rental assistance,
assistance with homeowners' association or condominium fees and
special assessments, and assistance with emergency repairs.
(2)
Affordability assistance to households earning thirty percent (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 thirty percent (30%) or less of median
income.
(3)
Payments in lieu of constructing affordable units on site and funds
from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
D.
Winslow 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 twenty percent (20%) of all revenues collected from
development fees, may be expended on administration, including, but
not limited to salaries and benefits for municipal employees or consultant
fees necessary to develop or implement a new construction program,
a Housing Element and Fair Share Plan, and/or an affirmative marketing
program. In the case of a rehabilitation program, no more than twenty
percent (20%) of the revenues collected from development fees shall
be expended for such administrative expenses. Administrative funds
may be used for income qualification of households, monitoring the
turnover of sale and rental units, and compliance with COAH's
monitoring requirements. Legal or other fees related to litigation
opposing affordable housing sites or objecting to the Council's
regulations and/or action are not eligible uses of the affordable
housing trust fund.
Winslow Township shall complete and return to COAH all monitoring
forms included in monitoring requirements related to the collection
of developments 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 Winslow 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.
The ability for Winslow Township to impose, collect and expend
development fees shall expire with its substantive certification unless
Winslow 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 Winslow Township fails to renew its ability to impose and collect
development fees prior to the expiration of substantive certification,
it may be subject to forfeiture of any or all funds remaining within
its municipal trust fund. Any funds so forfeited shall be deposited
into the "New Jersey Affordable Housing Trust Fund" established pursuant
to Section 20 of P.L. 1985, c. 222 (C. 52:27D-320). Winslow 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 or judgment of compliance, nor shall
Winslow Township retroactively impose a development fee on such a
development. Winslow Township shall not expend development fees after
the expiration of its substantive certification or judgment of compliance.