[HISTORY: Adopted by the Borough Council of the Borough of
Mountain Lakes as indicated in article histories. Amendments noted
where applicable.]
[Adopted 11-25-2019 by Ord. No. 14-19[1]]
[1]
Editor's Note: This ordinance also superseded former Art.
I, Development Fees, adopted 5-29-2019 by Ord. No. 7-19
A.Â
In Holmdel Builders Association v. Holmdel Borough, 121 N.J. 550
(1990), the New Jersey Supreme Court determined that mandatory development
fees are authorized by the Fair Housing Act of 1985 (the "Act"), N.J.S.A.
52:27D-301 et seq., and the State Constitution, subject to the Council
on Affordable Housing's ("COAH's") adoption of rules.
B.Â
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2),
and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 40:55D-8.7), COAH was 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 an approved
spending plan may retain fees collected from nonresidential development.
C.Â
This article establishes standards for the collection, maintenance
and expenditure of development fees pursuant to Court approval since
the Borough has sought and received a declaratory judgment approving
its affordable housing plan and in accordance P.L. 2008, c. 46, Sections
8 and 32 through 38. Fees collected pursuant to this article shall
be used for the sole purpose of providing low- and moderate-income
housing. This article shall be interpreted within the framework of
COAH's rules on development fees, codified at N.J.A.C. 5:97-8.[1]
[1]
Editor's Note: The provisions of N.J.A.C. 5:97 expired
on 6-2-2015.
The following terms, as used in this article, 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 development.
The New Jersey Council on Affordable Housing or a successor
to be established under state law 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.[1]
The value of a property determined by the Municipal Tax Assessor
through a process designed to ensure that all property in the municipality
is assessed at the same assessment ratio or ratios required by law.
Estimates at the time of issuance of a building permit may be obtained
utilizing estimates for construction cost. Final equalized assessed
value will be determined at project completion by the Municipal Tax
Assessor.
[1]
Editor's Note: The provisions of N.J.A.C. 5:97 expired
on 6-2-2015.
Nonresidential development fees shall be collected in accordance
with the New Jersey Statewide Non-Residential Development Fee Act,
N.J.S.A. 40:55D-8.1 through 40:55D-8.8.
A.Â
Imposed fees.
(1)Â
Developers or owners of new residential development shall pay a fee
of 1.5% of the equalized assessed value for the new residential development.
(2)Â
Developers or owners of any property which has an addition or other
improvement to an existing residential structure shall pay a fee of
1% of the equalized assessed value improvement. No fee, however, shall
be charged for any addition or improvement to an existing residential
structure as long as the addition or improvement does not increase
the equalized assessed value of the existing structure (the improvement
value only) by more than 50%. The development fee shall be calculated
on the increase in the equalized assessed value of the improved structure
(improvement value only).
B.Â
Eligible exemptions for residential development.
(1)Â
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)Â
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.
(3)Â
Residential structures demolished and replaced as a result of a natural
disaster or a fire shall be exempt from paying a development fee.
A.Â
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.
B.Â
Within 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.
C.Â
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.
D.Â
Within 10 business days of a request for the scheduling of a final
inspection, the Municipal Assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development;
calculate the development fee; and thereafter notify the developer
of the amount of the fee.
E.Â
Should the Borough of Mountain Lakes fail to determine or notify
the developer of the amount of the development fee within l0 business
days of the request for final inspection, the developer may estimate
the amount due and pay that estimated amount consistent with the dispute
process set forth in Subsection b of Section 37 of P.L. 2008, c. 46
(N.J.S.A. 40:55D-8.6).
F.Â
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 issuance of the building permit and that determined at issuance
of the certificate of occupancy.
G.Â
Appeal of development fees.
(1)Â
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 Borough of Mountain Lakes.
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.
(2)Â
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 Borough of
Mountain Lakes. 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.
