[Ord. No. 2016-08]
a.
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550
(1990), 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 New Jersey Constitution.
b.
Pursuant to 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 inclusive,
municipalities are authorized to adopt and promulgate regulations
for the collection, maintenance and expenditure of development fees
intended to be used for the sole purpose of providing low and moderate
income housing.
c.
This article establishes standards for the collection, maintenance
and expenditure of development fees pursuant to the aforementioned
statutory provisions.
[Ord. No. 2016-08]
This article shall not be effective until the Superior Court
of New Jersey or such agency or tribunal having jurisdiction approves
a plan for spending such development fees and the Borough has received
Third Round Substantive Certification and a Judgment of Compliance
from the Superior Court of New Jersey.
[Ord. No. 2016-08]
As used in this article, the following terms shall have the
meanings indicated:
Shall mean a development included in the Housing Element
and Fair Share Plan adopted by the Planning Board, which includes
but is not limited to accessory apartment units for very low and moderate
income persons. Such a development may also include a special needs
housing inclusive development or a one-hundred-percent-affordable
development.
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 by applicable law.
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 (N.J.S.A. 54:1-35a through
54:1-35c).
[Ord. No. 2016-08]
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 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.
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to 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 2.5%
percent shall be calculated on the difference between the equalized
assessed value of the preexisting land and improvement and 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 Residential
Development.
1.
The nonresidential portion of mixed-use inclusionary or market rate
development shall be subject to the development fee of 2.5% percent,
unless otherwise exempted below.
2.
The fee of 2.5% percent 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
Nonresidential 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 nonresidential development fee, in that event,
within three years after that event or after the issuance of the final
certificate of occupancy of the nonresidential development, whichever
is later.
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 Rockleigh as a lien against
the real property of the owner.
[Ord. No. 2016-08]
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 or designated municipal
official responsible for the issuance of a building permit.
b.
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 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 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 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 Rockleigh 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 (N.J.S.A. 40:55D-8.6).
h.
The payment of the nonresidential development fee shall be made prior
to the issuance of a certificate of occupancy for such development.
A final certificate of occupancy shall not be issued until such time
as the fee imposed pursuant to this section has been paid by the developer.
i.
Appeal of Development Fees.
1.
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 Rockleigh.
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.
[Ord. No. 2016-08]
a.
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Chief Financial Officer for the purpose
of depositing development fees collected from nonresidential developers.
b.
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities permitted by applicable
law.
[Ord. No. 2016-08]
a.
The expenditure of all funds shall conform to a spending plan approved
by the Superior Court of New Jersey or by such other agency or tribunal
having jurisdiction. Funds deposited in the housing trust fund may
be used for any activity approved by the applicable tribunal or agency
to address Rockleigh's fair share obligation and may be set up as
a grant or revolving loan program. Such activities may include, but
are not limited to, providing subsidies to homeowners who make available
accessory apartment units consistent with the Borough's Housing Element
and Fair Share Plan.
b.
The Borough may contract with a private or public entity to administer
any part of its Housing Element and Fair Share Plan consistent with
applicable regulations.
c.
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 consultant
fees necessary to develop or implement a new construction program,
a Housing Element and Fair Share Plan, and/or an affirmative marketing
program. Administrative funds may be used for income qualification
of households, monitoring the turnover of units, and compliance with
applicable 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.
[Ord. No. 2016-08]
The Borough shall complete and return to such designated agency
or tribunal all required monitoring forms related to the collection
of development fees from nonresidential developers.
[Ord. No. 2016-08]
The ability of Rockleigh to impose, collect and expend development
fees shall expire with its substantive certification unless Rockleigh
has prepared an adopted Housing Element and Fair Share Plan and has
petitioned for substantive certification and for approval of its Development
Fee Ordinance. If the Borough 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 (N.J.S.A. 52:27D-320).
Rockleigh shall not impose a nonresidential development fee on a development
that received preliminary or final site plan approval after the expiration
of its substantive certification or Judgment of Compliance, nor shall
Rockleigh retroactively impose a development fee on such a development.
Rockleigh shall not expend development fees after the expiration of
its substantive certification or Judgment of Compliance.
