[HISTORY: Adopted by the Township Council of the Township
of Monroe 2-1-93 by Ord. No. 0-2-93-005; amended in its entirety 6-9-93 by Ord. No. 0-6-93-021. Amended 6-8-05 by Ord. No. O-6-2005-028; 11-30-09 by Ord. No. O-11-2009-038; amended in its entirety 4-3-17 by Ord.
No. O-3-2017-006. Additional amendments noted where
applicable.]
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 the Fair Housing Act, as modified by P.L. 2008, c. 46,
Section 8 (C. 52:27D-329.2) and the Statewide Nonresidential Development
Fee Act (C. 40:55D-8.1 through 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 COAH or a Court of competent jurisdiction
and have an approved Spending Plan may retain development fees collected
from both residential and nonresidential developments.
C.
This chapter establishes standards for the collection, maintenance,
and expenditure of development fees that are consistent with COAH's
regulations and are in accordance P.L. 2008, c. 46, Sections 8 and
32-38. Fees collected pursuant to this chapter shall be used for the
sole purpose of providing low- and moderate-income housing. This chapter
shall be interpreted within the framework of COAH's rules on
development fees, codified at N.J.A.C. 5:94-6.
The Township of Monroe shall spend development fees in accordance
with its Spending Plan approved by Order of The Honorable Douglas
K. Wolfson on October 5, 2016, as amended and approved by the Superior
Court of New Jersey from time to time.
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 percent affordable housing
development.
The New Jersey Council on Affordable Housing established
under the Act which had primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the State until 2016 when jurisdiction was vested
in the Superior Court of New Jersey.
Money paid by a developer for the improvement of property
as permitted at N.J.A.C. 5:94-6.
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.
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).
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 determination by an administrative agency responsible for
implementing the Fair Housing Act and adopting regulations pursuant
thereto for approving a municipality's housing element and fair
share plan in accordance with the provisions of the Act or its equivalent
when granted by a Court of competent jurisdiction.
A.
Imposition of fees.
(1)
Within the Township of Monroe, 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 percent (1.0%) of the equalized assessed value
for all new residential development provided no increased density
is permitted. Development fees shall also be imposed and collected
when an additional dwelling unit is added to an existing residential
structure; in such cases, the fee shall be calculated based on the
increase in the equalized assessed value of the property due to the
additional dwelling unit.
(2)
When 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 percent (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 include affordable housing. 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.
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)
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 year or more prior to obtaining a demolition
permit. Where a development fee is charged for a replacement dwelling,
the development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
(3)
Homes replaced as a result of a natural disaster (such as a fire
or flood) shall be exempt from the payment of a development fee.
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 percent (2.5%) 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 developments specifically exempted below,
shall also pay a fee equal to two and one-half percent (2.5%) 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 percent (2.5%) shall be calculated on the difference between
the equalized assessed value of the preexisting 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 the property qualifies for a final certificate of occupancy.
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
development
(1)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to a two and a half percent (2.5%)
development fee, unless otherwise exempted below.
(2)
The two and a half percent (2.5%) development fee shall not apply
to an increase in equalized assessed value resulting from alterations,
change in use within the 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 the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), as specified in Form N-RDF "State of New Jersey Nonresidential
Development Certification/Exemption." 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 the Statewide Nonresidential Development
Fee Act shall be subject to the fee 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 years
after that event or after the issuance of the final certificate of
occupancy for 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 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Township of Monroe as a lien against the
real property of the owner.
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 building permit.
B.
For nonresidential developments only, 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 Township 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 such notification, the Township 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 Township 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 10 business days of a request for the scheduling of a final
inspection, the Township 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 Township of Monroe 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 (C.40:55D-8.6).
H.
Except as provided in Section 131-5 hereinabove, 25% of the initially calculated development fee shall be collected at the time of issuance of the building permit.
I.
Developers shall pay the remaining fee to the Township of Monroe
when their properties qualify for, but prior to, the issuance of certificates
of occupancy. When notified that the properties noted above qualify
for certificates of occupancy, the Tax Assessor shall calculate the
equalized assessed value and the appropriate development fee. The
developer shall be responsible for paying the difference between the
fee calculated at that time and the amount paid at the time the building
permit is issued.
J.
The developer shall, within 10 days from receipt of notification
from the Township, pay to the Township the difference between the
development fees required to be paid by the developer once such final
equalized assessed value has been determined and the estimated development
fees actually paid by the developer. The failure of the developer
to make timely payment of the aforesaid deficiency shall entitle the
Township to file, without further notice to the developer, a lien
against the subject development. In the event the Township shall file
such lien, the Township may add to the aforesaid deficiency amount
reasonable attorney fees to file and discharge such lien, together
with any and all costs incurred to file and discharge said lien.
K.
Appeal of development fees.
(1)
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 Township of Monroe. 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 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 45 days of receipt of the challenge, collected fees shall
be placed in an interest bearing escrow account by the Township of
Monroe. 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 90 days after the date
of such determination. Interest earned on amounts escrowed shall be
credited to the prevailing party.
A.
By Ordinance No. O-5-2012-013 Monroe Township created an Affordable
Housing Irrevocable Trust into which it transferred all Development
Fee funds on deposit as of December 31, 2011 (the "Irrevocable Trust").
All Development Fees received thereafter are deposited into an interest-bearing
Affordable Housing Trust Fund in an official depository of the Township
of Monroe created for the purpose of receiving development fees from
residential and nonresidential developers. All development fees paid
by developers pursuant to this chapter shall be submitted to the Treasurer
of the Township for deposit into the Affordable Housing Trust Fund.
No money shall be expended from the Irrevocable Trust, or the Affordable
Housing Trust Fund, unless the expenditure conforms to the Spending
Plan approved by the Superior Court of New Jersey.
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 a fraction of an affordable
unit;
(2)
Funds contributed by developers to make 10% 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 Monroe's affordable
housing program.
C.
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Superior Court of New Jersey.
A.
The expenditure of all funds shall conform to the Spending Plan approved
by the Superior Court of New Jersey. Funds deposited in the Affordable
Housing Trust Fund may be used for any activity approved by the Superior
Court of New Jersey to address the Township of Monroe'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 designed to increase affordability; administration
necessary for implementation of the Housing Element and Fair Share
Plan; and/or any other activity listed as permitted in COAH's
Rules and specified in the Court-approved Spending Plan.
B.
At least 30% 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 30% or less of the median income
for Housing Region 3, in which the Township of Monroe is located.
(1)
Affordability assistance programs may include, but are not limited
to, down payment assistance, security deposit assistance, low interest
loans, rental assistance, moving expenses not to exceed $500 per family,
assistance with homeowners' association or condominium fees and
special assessments, and assistance with emergency repairs.
(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 municipal Fair Share Plan to make them affordable to
households earning 30% or less of median income. The use of development
fees in this manner may entitle the Township of Monroe 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.
(4)
Monroe Township has adopted the following specific affordability
assistance programs:
(a)
Rent subsidies for low- and moderate- income households based
upon size of household and number of bedrooms in apartment.
[1]
One-bedroom, low-income unit — $55.00 per month subsidy.
[2]
One-bedroom, moderate-income unit — $100.00 per month
subsidy.
[3]
Two-bedroom, low-income unit — $100.00 per month subsidy.
[4]
Two-bedroom, moderate-income unit — $200.00 per month
subsidy.
[5]
Three-bedroom, low-income unit -- $150.00 per month subsidy.
[6]
Three-bedroom, moderate-income units -- $250.00 per month subsidy.
(b)
The following additional assistance is offered to very low-income
households:
[1]
Payment of "moving expenses" based upon verified receipts, in
an amount not to exceed One Thousand Five Hundred and 00/100 Dollars
($1,500.00) per household.
[2]
Rental security deposit — Deposits paid to landlord to
be returned to the Township Affordable Housing Trust Fund upon termination
of tenancy.
(c)
Buyer assistance. The Township may pay the following from the
Affordable Housing Trust Fund to, or on behalf of, low- and moderate-income
households to assist with the purchase of an affordable unit in which
the buyer's household will reside:
[1]
Payment of closing costs: i.e., title work and policy, reasonable
attorney's fees for closing of title, preparation of survey,
homeowners insurance, recording fees, and other necessary closing
expenses to third parties, not to exceed $1,500 per unit.
[2]
Payment of lender fees: i.e., mortgage points, application fees,
appraisal fees, bank attorney review fees, and necessary mortgage
closing expenses, not to exceed $1,500 per unit.
[3]
The total buyer assistance per unit shall not exceed $3,000
for the above referenced assistance grants.
[4]
Down payment assistance in the form of a repayable loan, to
be repaid to the Township of Monroe Affordable Housing Trust Fund
upon the resale of the affordable housing unit (said assistance not
to exceed 10% of the purchase price). Down payment assistance is subject
to approval by the lender.
(5)
A low- or moderate-income household may not be denied affordability
assistance unless funding is no longer available from the Affordable
Housing Trust Fund.
C.
The Township of Monroe 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.
D.
No more than 20% 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 20% of the
revenues collected from development fees shall be expended for such
administrative expenses.
(2)
Administrative funds may be used for income qualification of households,
monitoring the turnover of sale and rental units, and compliance with
the Superior Court of New Jersey'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.
The Township of Monroe shall file such monitoring reports and
forms necessary to comply with the Superior Court of New Jersey'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 Monroe Township'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 Court.
A.
The ability of the Township of Monroe to impose, collect and expend
development fees shall expire July 1, 2025, unless prior thereto the
Township of Monroe has filed an adopted Housing Element and Fair Share
Plan with the Superior Court of New Jersey or with such other State
agency having jurisdiction over the adoption and enforcement of Rules
in connection with the implementation of the Fair Housing Act and
approval of municipal Housing Elements and Fair Share Plans, has petitioned
for Substantive Certification or a Judgment of Compliance, and has
received approval of its Development Fee Ordinance.
B.
If the Township of Monroe fails to renew its ability to impose and
collect development fees prior to July 1, 2025, it may be subject
to forfeiture of any or all uncommitted funds remaining within its
Affordable Housing 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 (C. 52:27D-320).
