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 COAH developing
rules as amended from time to time and/or in accordance with the enacted
legislation and/or in accordance with directives from the courts.
The purpose of this chapter is to establish standards for the collection,
maintenance and expenditure of development fees pursuant to the above.
Fees collected pursuant to this chapter shall be used for the sole
purpose of providing low- and moderate-income housing.
The following terms, as used in this chapter, shall have the
following meanings:
AFFORDABLE HOUSING DEVELOPMENT
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.
COAH
The New Jersey Council on Affordable Housing or any entity
administering or operating on its behalf, including, but not limited
to, the superior courts of the State of New Jersey.
DEVELOPER
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.
DEVELOPMENT FEE
Funds paid by an individual, person, partnership, association,
company or corporation for the improvement of property as permitted
in COAH's rules.
EQUALIZED ASSESSED VALUE
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.
GREEN BUILDING STRATEGIES
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.
50% of the development fee will be collected at the time of
issuance of the building permit. The remaining portion will 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. After issuance of a building permit, the Construction
Official shall refer the plans for the development to the Tax Assessor.
The Tax Assessor shall certify to the Construction Official the final
equalized assessed value in advance of the issuance of a certificate
of occupancy by the Construction Official. The remaining portion of
the development fee shall be adjusted to reflect any change in the
estimated equalized assessed value so that the total of the two payments
shall equal 100% of the total development fee based upon the final
equalized assessed value.
The Borough shall complete and return to the Fair Share Housing
Center (FSHC) all monitoring forms included in the annual monitoring
report related to the collection of development fees from residential
and nonresidential developers, payments in lieu of constructing affordable
units on site, and funds from the sale of units with extinguished
controls, and the expenditure of revenues and implementation of the
plan approved by the court. All monitoring reports shall be completed
on forms designed by COAH or similar to COAH's monitoring forms
and approved by FSHC.
The ability for the Borough to impose, collect and expend development
fees shall expire with its judgment of compliance on the date of expiration
of the judgment of compliance unless the Borough has filed an adopted
Housing Element and Fair Share Plan with the court, has petitioned
for a judgment of compliance, and has received the court's approval
of its Development Fee Ordinance. If the Borough fails to renew its
ability to impose and collect development fees prior to the date of
expiration of its judgment of compliance, it may resume the imposition
and collection of development fees only by complying with the requirements
of N.J.A.C. 5:97-8. The Borough shall not impose a development fee
on a development that receives preliminary or final approval after
the expiration of its judgment of compliance, nor will the Borough
retroactively impose a development fee on such a development. The
Borough will not expend development fees after the expiration of its
judgment of compliance.