[Adopted 2-15-2018 by Ord. No. 1503[1]]
[1]
Editor's Note: This ordinance superseded former Ch. 22A, Affordable
Housing Development Fees, adopted by Ord. No. 1303, as amended.
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:
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 Borough of Bogota.
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.
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.
Funds paid by an individual, person, partnership, association,
company or corporation for the improvement of property as permitted
in COAH's rules.
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.
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.
a.
Within all zoning districts, residential developers shall pay a fee
of 1.5% of the equalized assessed value for residential development,
provided no increased density is permitted.
b.
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5)
has been permitted, developers shall pay a development fee of 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.
a.
Within all zoning districts, nonresidential developers, except for
developers of the types of development specifically exempted, shall
pay a fee of 2.5% of the equalized assessed value of the land and
improvements for all new nonresidential construction on an unimproved
lot or lots.
b.
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to 2.5%
of the increase in equalized assessed value resulting from any additions
to existing structures to be used for nonresidential purposes.
c.
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
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 the final certificate of occupancy is issued. If the calculation
required under this subsection results in a negative number, the nonresidential
development fee shall be zero.
a.
Affordable housing developments and developments where the developer
has paid a payment in lieu of on-site construction shall be exempt
from development fees. All other forms of new construction shall be
subject to development fees, unless exempted below.
b.
Developments that have received preliminary or final approval prior
to the imposition 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.
c.
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.
d.
The development fee shall not apply to the expansion of a single-
or two-family home where the net increase in interior floor area is
less than 15% of the existing structure. In no event shall the development
fee be collected where the total increase in floor area is 500 square
feet or less. Upon the request of the Zoning Officer, the property
owner shall produce, within 30 days, a set of certified plans, signed
by a licensed architect, confirming the amount of previously existing
and as-built conditions.
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.
a.
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 Bogota. 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.
b.
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
Bogota. 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.
a.
There is hereby created a separate, interest-bearing housing trust
fund, in a bank utilized by the Borough for its ordinary business
purposes, and maintained by the Chief Financial Officer of the Borough,
for the purpose of depositing development fees collected from residential
and nonresidential developers, any other payments made pursuant to
this chapter from residential and nonresidential developers, and proceeds
from the sale of units with extinguished controls. All development
fees paid by developers pursuant to this chapter shall be deposited
into this fund.
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 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 program loans;
5.
Recapture funds;
6.
Proceeds from the sale of affordable units; and
7.
Any other funds collected in connection with the Borough of Bogota's
affordable housing program.
a.
Funds deposited in the housing trust fund may be used for any eligible
activity in COAH's regulations or in accordance with any directives
from the courts to address the municipal fair share. Such activities
include, but are not limited to: rehabilitation, new construction,
ECHO housing, purchase of land for affordable housing, improvement
of land to be used for affordable housing, purchase of housing, extensions
or improvements of roads and infrastructure to affordable housing
sites, financial assistance designed to increase affordability, or
administration necessary for implementation of the Housing Element
and Fair Share Plan. The expenditure of all funds shall conform to
a spending plan approved by the courts.
b.
Funds shall not be expended to reimburse the Borough for past housing
activities.
c.
At least 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 of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
1.
Affordability assistance programs may include downpayment assistance,
security deposit assistance, low-interest loans, and rental assistance.
2.
Affordability assistance to households earning 30% or less of median
income may include buying down the cost of low- or moderate-income
units in the third-round Municipal Fair Share Plan to make them affordable
to households earning 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.
The Borough 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.
5:94-7.
e.
No more than 20% of the revenues collected from development fees
each year shall 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 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 the court's monitoring
requirements. Development fee administrative costs are calculated
and may be expended at the end of each year or upon receipt of the
fees. Legal or other fees related to litigation opposing affordable
housing sites or objecting to COAH's regulations or court action
are not eligible uses of the Affordable Housing Trust Fund.
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.
