[Ord. No. 1257-16-08 § 1]
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, N.J.S.A. 52:27d-301
et seq., and the State Constitution, subject to the adoption of Rules
by the Council on Affordable Housing (COAH).
b.
Pursuant to P.L. 2008, c. 46, Section 8 (C. 52:27D-329.2) and the
Statewide Non-Residential Development Fee Act (C. 40:55-8.1 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 COAH-approved Spending
Plan may retain fees collected from nonresidential development.
c.
This article established standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH'S regulations
and in accordance P.L. 2008, c. 46, Sections 8 and 32-38. 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.
[Ord. No. 1257-16-08 § 2]
[Ord. No. 1257-16-08 § 3]
As used in this article:
Shall mean 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 (100%)
percent affordable housing development.
Shall mean 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.
Shall mean 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.
Shall mean money paid by a developer for the improvement
of property as permitted at N.J.A.C. 5:97-8.3.
Shall mean 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).
Shall mean 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.
[Ord. No. 1257-16-08 § 4]
a.
Imposition of Fees.
1.
Within the Borough of Little Ferry, 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 one and one-half (1.5%) percent of the equalized
assessed value for all new residential development provided no increased
density is permitted.
2.
Where 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 six (6%) percent 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 included affordable housing. If the zoning on
a site has changed during the two (2) 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 (2) 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
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 article 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 (1) year or more prior to obtaining a
demolition permit.
[Ord. No. 1257-16-08 § 5]
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 two and one-half (2.5%) percent 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 development specifically exempted below,
shall also pay a fee equal to two and one-half (2.5%) percent 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 (2.5%) percent 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
Developments.
1.
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the two and one-half (2.5%) percent
development fee, unless otherwise exempted below.
2.
The two and one-half (2.5%) percent development fee shall not apply
to an increase in equalized assessed value resulting from alterations,
change in use within the existing building footprint, reconstruction,
renovations and repairs.
3.
Nonresidential developments shall be exempted 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 as the basis for the exemption no longer applies,
and shall make the payment of the nonresidential development fee,
in that event, within three (3) years after that event or after the
issuance of the final Certificate of Occupancy of 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 forty-five (45) days of the termination of the
property tax exemption. Unpaid nonresidential development fees under
these circumstances may be enforceable by the Borough of Little Ferry
as a lien against the real property of the owner.
[Ord. No. 1257-16-08 § 6]
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 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 by 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 Borough Tax Assessor of the issuance of the
first Construction Permit for a development which is subject to a
development fee.
d.
Within ninety (90) days of receipt of such notification, the Borough
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 Borough 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 ten (10) business days of a request for the scheduling of
a final inspection, the Borough 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 Borough of Little Ferry 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 17 of P.L. 2008, c. 46 (C. 40:55D-8.6)
h.
Except as provided in Section 35-1505a3 above, fifty (50%) percent 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 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 Little Ferry. 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
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-five (45) days of receipt of the challenge, collected
fees shall be placed in an interest bearing escrow account by the
Borough of Little Ferry. 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.
[Ord. No. 1257-16-08 § 7]
a.
There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Borough of Little Ferry 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.
Funds contributed by developers to make ten (10%) percent of the
adaptable entrances in a townhouse or other multistory attached 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 Little Ferry's affordable
housing program.
c.
Within seven (7) days from the opening of the Affordable Housing
Trust Fund, the Borough of Little Ferry shall provide COAH with written
authorization, in the form of a three-party escrow agreement between
the Borough of Little Ferry, 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).
d.
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
COAH.
[Ord. No. 1257-16-08 § 8]
a.
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 Borough of Little
Ferry'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 designated to increase
affordability; administration necessary for implementation of the
Housing Element and Fair Share Plan; and/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 the Borough of Little Ferry
for past housing activities.
c.
At least thirty (30%) percent 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 thirty
(30%) percent or less of the median income for Housing Region 1, in
which Little Ferry 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.
2.
Affordability assistance to households earning thirty (30%) percent
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 (30%) percent or less
of median income. The use of development fees in this manner may entitle
the Borough of Little Ferry to bonus credits pursuant to N.J.A.C.
5:97-3.7.
3.
Payments in lieu of constructing affordable housing units on site
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
d.
The Borough of Little Ferry 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 (20%) percent 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.
1.
In the case of a rehabilitation program, no more than twenty (20%)
percent of the revenues collected from development fees shall be expended
for such administrative expenses.
2.
Administrative funds may be used for income qualifications 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 actions are not eligible uses of the Affordable Housing Trust
Fund.
[Ord. No. 1257-16-08 § 9]
The Borough of Little Ferry shall complete and return to COAH
all required monitoring forms necessary to comply with COAH'S 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 Little Ferry's affordable housing program, as well as to the
expenditure of revenues and implementation of the Housing Element
and Fair Share Plan approved by the Superior Court. All monitoring
reports shall be completed on forms designed by COAH.
[Ord. No. 1257-16-08 § 10]
a.
The ability for the Borough of Little Ferry to impose, collect and
expend development fees shall expire with the expiration of its Judgment
of Compliance unless the Borough of Little Ferry has first filed an
adopted Housing Element and Fair Share Plan with COAH or the Court,
has petitioned substantive certification or a Declaratory Judgment
of Compliance, and has received COAH's approval of its Development
Fee Ordinance.
b.
If the Borough of Little Ferry 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 to 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 Borough of Little Ferry 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 Borough of Little Ferry retroactively impose a development fee
on such a development. The Borough of Little Ferry also shall not
expend any of its collected development fees after the expiration
of its Judgment of Compliance.
