[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. 2019-1444]
As used in this chapter:
Shall mean the New Jersey Council on Affordable Housing.
Shall mean money paid by an individual, person, partnership,
association, company, or corporation for the improvement of property
as set forth in this chapter and by COAH's rules.
Shall mean the value of 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 building permit may be established
by the Tax Assessor utilizing estimates for construction cost. Final
equalized assessed value will be determined at project completion
by the Municipal Tax Assessor.
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.
Shall mean a revision to a preliminary or final plat which
does not violate any requirements of the Borough's ordinances,
does not alter the amount of low and moderate income housing or other
forms of participating in the low and moderate income housing program
as set forth in the approved development, and does not have changes
which exceed any of the following: a decrease in any yard setback
of five feet or more; an increase in the building height by seven
feet or more; an increase of 1% or more in the approved floor area
ratio; an increase of 1% or more in the approved lot coverage (building,
paving and other coverages); a reduction of five feet or more in the
spacing between buildings; a reduction of three or more parking spaces;
a reduction of one or more loading spaces; a shift of five feet or
more in any driveway location; and an increase of 1% or more in the
area of the approved site disturbance. A substitution of similar landscaping
material, lighting fixture, and signage is not a substantial change
provided there is no change in approved quantities and/or dimensions.
Shall mean a judgment issued by the Superior Court approving
a municipality's plan to satisfy its fair share housing obligation
for low and moderate income housing.
Shall mean any change in an approved structure's bulk,
or a building's gross floor area, or change in the site plan
where the result exceeds any of the requirements of the zoning district
in which it is located, and where said changes exceed the limitations
necessary to qualify as an "insubstantial change" set forth herein.
Shall mean a determination by COAH approving a municipality's
housing element and fair share plan in accordance with the provisions
of the Fair Housing Act and the rules and criteria as set forth by
COAH. A grant of substantive certification shall be valid for a period
of six years in accordance with the terms and conditions contained
in the substantive certification.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
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 (the
Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject
to the Council on Affordable Housing's (COAH's) adoption
of rules.
b.
Pursuant to P.L.2008, c.46 section 8 (C. 52:27D-329.2) and the Statewide
Non-Residential Development Fee Act (C. 40:55D-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 a COAH- or Court-approved
spending plan may retain fees collected from non-residential development.
c.
This chapter establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to the regulations and
in accordance with 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 the rules on development fees, codified at
N.J.A.C. 5:97-8.
[Ord. #98-969, § 1; Ord. #99-1006, § 1]
Any fees either collected or required to be paid to the Affordable Housing Fund as a condition of either preliminary or final plat approval both prior to the effective date of this chapter shall be retained and/or continue to be collected by the Borough under the terms of the Final Judgment of Compliance and Repose (See subsection 23-4.2b).
[Ord. #98-969, § 1; Ord. #99-1006, § 1;
Ord. #01-1057, § I; Ord. #05-1149, § I; Ord. No. 2019-1444]
a.
Developers of new housing in all residential districts shall pay
a development fee of 1.5% of the equalized/assessed value of each
new residential dwelling unit. Where a structure is converted so as
to provide one or more additional dwelling units, the fee to be paid
shall be based on 1.5% of the increase in the equalized assessed value.
As used herein, "developer" includes an individual or entity constructing
one dwelling unit as well as an individual or entity constructing
more than one dwelling unit.
b.
Where an increase in density is granted pursuant to a "d" variance,
residential developers shall pay a development fee of 1.5% for the
number of units permitted by right and shall pay an additional development
fee of 6% of the equalized assessed value for each additional dwelling
unit permitted as a result of the "d" variance. Pursuant to COAH regulations,
municipalities must consider the zoning of property during the two
years prior to filing a "d" variance application for purposes of determining
that an increase in density has been provided. Thus, if the zoning
on the property has changed during the two-year period, the base density,
for the purposes of calculating the additional development fee, shall
be the highest density permitted by right during the two years preceding
the filing of the "d" variance application.
c.
Residential developers in which a required percentage of the dwelling
units are to be set aside for low and moderate income households may
make a payment in lieu of constructing low and moderate income housing,
if the Borough has the ability, pursuant to COAH's rules to enter
into a Regional Contribution Agreement; and such payment is granted
by the approving authority and COAH. The per unit payment shall equal
$35,000 or COAH's standard for the minimum cost of a Regional
Contribution Agreement (whichever is greater). No developer that pays
a fee in lieu of constructing low and moderate income housing shall
replace low and moderate income units with market units unless the
replacement is approved by the approving authority and the developer
pays a fee of 6% of equalized assessed value on each market unit that
replaces a low and moderate income unit. Example: A site may be developed
for 80 market units and 20 low and moderate income units. The developer
receives approval to make a payment of $35,000 per unit in lieu of
building 20 low and moderate income units.
The developer also proposed to construct 20 additional market
units to replace the 20 low and moderate income units. If the developer
requests the ability to replace low and moderate income units with
market units, and the approving authority grant the developer's
request, the developer shall be required to pay a 6% fee on the additional
20 market units.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
a.
Developers who construct low and moderate income housing units as part of their developments shall be exempt from paying development fees on the market-level units provided the developer constructs the full complement of low and moderate income housing units required in the chapter or, in lieu thereof, pays the fee for any units not constructed as set forth in subsection 23-4.1c.
b.
Developers who have preliminary and/or final approvals of a subdivision or site plan still in effect prior to the effective date of this chapter, which approval shall have been granted either without the requirement to pay the fees set forth in subsection 23-4.1a above, or the payment of a different fee imposed under the Judgment of Compliance and Repose, shall be exempt from paying the development fee unless the developer seeks a substantial change in the prior approval.
c.
Additions or improvements to existing homes, or the construction
of accessory buildings such as a garage or tool shed or landscaping
improvements, other than where a building may be converted to provide
an additional dwelling unit, shall be exempt from this fee. Where
a building is converted so as to provide one or more additional dwelling
units in the building or on the lot, the fee to be paid shall be based
on the increase in the property's equalized/assessed value.
d.
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.
[Ord. #98-969, § 1; Ord. #99-1006, § 1;
Ord. #05-1149, § I; Ord. No. 2019-1444]
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% 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%
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%
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.
In addition to the fees set forth in subsection 23-5.1a, nonresidential developers that receive an increase in floor area, pursuant to a "d" variance, shall pay a development fee of 2% of equalized/assessed value for the floor area permitted pursuant to the Ordinance and a fee of 6% for the equalized assessed value of the additional floor area permitted by the "d" variance. Pursuant to COAH regulations, municipalities shall consider the zoning of property during the two years prior to filing the "d" variance application for purposes of determining that an increase in floor area has been provided. Thus, if the zoning on the property has changed during the two-year period, the base floor area for the purposes of calculating the increase in floor area shall be the highest floor area permitted by right during the two years preceding the filing of the "d" variance application.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
a.
Eligible Exactions, Ineligible Exactions and Exemptions From Nonresidential
Development Fees.
1.
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the 2.5% development fee, unless
otherwise exempted below.
2.
The 2.5% fee 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 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by Tinton Falls as a lien against the real property
of the owner.
b.
Where an existing site is proposed to be improved by new site work alone, such as landscaping, stormwater improvements, new parking lot, or similar work, and none of those improvements involve any new building, or an expanded building, or a structurally modified building, there shall be no fee for those site improvements. Where any site involves a new building, expanded building, structural modifications, or a major rehabilitation effort involving fundamental components of an existing building such as, but not limited to, the electrical service and/or interior service network, communication systems, water service and distribution systems, sewage collection and discharge systems, air conditioning equipment and ductwork, heating equipment and distribution systems, improved insulation, window replacements, roofing, foundation repair, and siding repair or replacement, the fee shall be as required in subsection 23-5.1 above.
[Ord. #98-969, § 1; Ord. #99-1006, § 1]
a.
Developers shall pay 50% of the estimated development fee as a condition
for receiving a construction permit for each building. The development
fee shall be estimated by the Tax Assessor prior to the issuance of
the construction permit(s).
b.
Developers shall pay the balance of the development fee prior to
the issuance of a certificate of occupancy. Upon completion of the
structure, but prior to the issuance of the certificate 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 total fee calculated as part
of the issuance of the certificate of occupancy and the amount paid
at the time the construction permit was issued.
c.
All fees shall be paid by either certified check or bank money order
made payable to the "Borough of Tinton Falls" and noted as a "Payment
to the Affordable Housing Trust Fund" and shall be collected by the
Borough Construction Code Official in conjunction with the issuance
of the Construction Permit and Certificate of Occupancy.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
All development fees collected pursuant to this Chapter and
all interest generated by the deposits shall be required to be spent
in accordance with the Spending Plan approved by the Superior Court.
If the Superior Court determines that Tinton Falls Borough is not
in conformance with COAH's rules on development fees, the Superior
Court is authorized to direct the manner in which all development
fees collected pursuant to ordinance shall be expended. Such authorization
is pursuant to this Chapter; COAH's rules on development fees;
and the written authorization from the Borough Council to the bank
in which the Housing Trust Fund is located.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
a.
Money deposited in the Affordable Housing Trust Fund may be used
for any activity approved the Court in accordance with a Court-approved
Spending Plan for addressing the Borough's low and moderate-income
housing obligation such as, but not limited to, housing rehabilitation.
b.
At least 30% of the net funds after the costs for housing rehabilitation
and Regional Contribution Agreements shall be devoted to render units
more affordable, such as but not limited to, down payment assistance,
low interest loans, and rental assistance such as a security deposit.
c.
No more than 20% of the revenues collected shall be expended on administrative
costs necessary to develop, revise, or implement the housing element
and may include administrative activities such as but not limited
to, personnel salaries, consultant services, space costs, consumable
supplies, and the rental or purchase of equipment.
d.
Development fee revenues shall not be expended to reimburse the Borough
for housing activities that preceded substantive certification.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
This Chapter shall expire as a result of any of the following:
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
The Borough shall complete all monitoring forms related to the
collection of development fees, expenditures of revenues, and implementation
of the Spending Plan as approved and required by the Superior Court.
Quarterly financial reports and annual program implementation and
auditing reports shall be completed on forms approved by the Superior
Court.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
The Borough shall submit to the Superior Court a Spending Plan
for the collected development fees. The plan submitted shall include
the following:
a.
A projection of revenues anticipated from imposing fees on development,
based on historic activity.
b.
A description of the administrative mechanism used to collect and
distribute revenues.
c.
A description of the anticipated uses of the development fees.
d.
A schedule for any remaining housing units to be rehabilitated.
e.
In the event the Spending Plan envisions being responsible for public
sector or nonprofit construction of housing, a pro-forma statement
of the anticipated costs and revenues associated with the development.
f.
The manner through which any expected or unexpected shortfall will
be addressed if the anticipated revenues from the development fees
are not sufficient to implement the plan.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
a.
In the event any of the conditions set forth in Section 23-12b occur, the Superior Court is authorized, on behalf of the Borough after conducting a hearing upon proper notice in accordance with the Rules of Court, to direct the manner in which all development fees collected pursuant to this Chapter shall be expended. Should any such condition occur, such revenues shall immediately become available for expenditure at the direction of the Superior Court upon the Borough Clerk's receipt of written notification from the Superior Court that such a condition has occurred. In furtherance of the foregoing, the bank account established pursuant to this Chapter shall provide whatever express written authorization which may be required by the bank to permit the Superior Court to direct disbursement of such revenues from the account following the delivery to the bank of the aforementioned written notification from the Superior Court to the Borough Clerk.
b.
Occurrence of the following may result in the Superior Court taking action pursuant to Section 23-12a.
1.
Failure to submit a Spending Plan within the time limits imposed
by the Superior Court.
2.
Failure to meet deadlines for information required by the Superior
Court in the Superior Court's review of this Chapter, the Borough's
Housing Element, or the Spending Plan.
3.
Failure to address the Superior Court's conditions for approval
of the Spending Plan within the deadlines imposed by the Superior
Court.
4.
Failure to submit accurate monitoring reports within the time limits
imposed by the Superior Court.
5.
Failure to implement the Spending Plan within the time limits imposed
by the Superior Court or within reasonable extensions granted by the
Superior Court.
6.
Expenditure of development fees on activities not permitted by the
Superior Court.
7.
Other good cause demonstrating that the revenues are not being used
for the intended purpose(s).
[Ord. #98-969, § 1; Ord. #99-1006, § 1]
If any part(s) of this chapter shall be held invalid, the holding
shall not affect the validity of the remaining parts of this chapter.
If any part(s) of this chapter is held invalid in one or more of its
applications, the rules shall remain in effect in all valid applications
that are severable from the invalid application.
[Ord. #98-969, § 1; Ord. #99-1006, § 1; Ord. No. 2019-1444]
This Chapter shall take effect upon receipt of approval from
the Superior Court of New Jersey.
[Ord. #08-1248, § 1]
The purpose of this section is to create the administrative
mechanisms needed for the execution of the Borough of Tinton Fall's
responsibility to assist in the provision of affordable housing pursuant
to the Fair Housing Act of 1985.
[Ord. #08-1248, § 2]
As used in this section, the following terms shall have the
meanings indicated:
Shall mean the entity responsible for administering the affordability
controls of some or all units in the affordable housing program for
the Borough of Tinton Falls to ensure that the restricted units under
administration are affirmatively marketed and sold or rented, as applicable,
only to low- and moderate-income households.
Shall mean the employee charged by the Governing Body with
the responsibility for oversight and administration of the affordable
housing program for the Borough of Tinton Falls.
[Ord. #08-1248, § 3]
a.
Establishment of position of MHL Administrator. There is hereby established
the position of MHL Administrator for the Borough of Tinton Falls.
b.
Subject to the approval of the Council on Affordable Housing (COAH),
the MHL Administrator shall be appointed by the Mayor and may be a
full or part time employee.
c.
The MHL Administrator shall be responsible for oversight and administration
of the municipality's affordable housing program, including the
following responsibilities which may not be contracted out:
1.
Serving as the Borough of Tinton Falls' primary point of contact
for all inquiries from the State, affordable housing providers, Administrative
Agents, and interested households;
2.
Monitoring the status of all restricted units in the Borough of Tinton
Falls' Fair Share Plan and any Project Plan for any RCA;
3.
Compiling, verifying, and submitting semi-annual reports as required
by COAH;
4.
Coordinating meetings with affordable housing providers and Administrative
Agents, as applicable;
5.
Attending continuing education opportunities as offered or approved
by COAH;
6.
If applicable, serving as the Administrative Agent for some or all
of the restricted units in the Borough of Tinton Falls as described
in paragraph f below.
d.
Subject to approval by COAH, the Borough of Tinton Falls may contract
with or authorize a consultant, authority, government or any agency
charged by the Governing Body, which entity shall have the responsibility
of administering the affordable housing program of the Borough of
Tinton Falls, except for those responsibilities which may not be contracted
out pursuant to paragraph c above. If the Borough of Tinton Falls
contracts with another entity to administer all or any part of the
affordable housing program, including the affordability controls and
Affirmative Marketing Plan, the MHL shall supervise the contracting
Administrative Agent.
e.
Compensation shall be fixed by the Governing Body at the time of
the appointment of the MHL.
f.
Administrative powers and duties assigned to the MHL. Unless delegated
and/or contracted to an approved Administrative Agent, the Administrator
shall be responsible for the following activities:
1.
Affirmative Marketing.
(a)
Conducting an outreach process to insure affirmative marketing
of affordable housing units in accordance with the Affirmative Marketing
Plan of the Borough of Tinton Falls and the provisions of N.J.A.C.
5:80-26.15; and
(b)
Providing counseling or contracting to provide counseling services
to low and moderate income applicants on subjects such as budgeting,
credit issues, mortgage qualification, rental lease requirements,
and landlord/tenant law.
2.
Household Certification.
(a)
Soliciting, scheduling, conducting and following up on interviews
with interested households;
(b)
Conducting interviews and obtaining sufficient documentation
of gross income and assets upon which to base a determination of income
eligibility for a low- or moderate-income unit;
(c)
Providing written notification to each applicant as to the determination
of eligibility or ineligibility;
(d)
Requiring that all certified applicants for restricted units
execute a certificate substantially in the form, as applicable, of
either the ownership or rental certificates set forth in Appendices
J and K of N.J.A.C. 5:80-26.1 et seq.;
(e)
Creating and maintaining a referral list of eligible applicant
households living in the housing region and eligible applicant households
with members working in the housing region where the units are located;
and
(f)
Employing the random selection process as provided in the Affirmative
Marketing Plan of the Borough of Tinton Falls when referring households
for certification to affordable units.
3.
Affordability Controls.
(a)
Furnishing to attorneys or closing agent's forms of deed
restrictions and mortgages for recording at the time of conveyance
of title of each restricted unit;
(b)
Creating and maintaining a file on each restricted unit for
its control period, including the recorded deed with restrictions,
recorded mortgage and note, as appropriate;
(c)
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the appropriate
County's Register of Deeds or County Clerk's office after
the termination of the affordability controls for each restricted
unit;
(d)
Communicating with lenders regarding foreclosures; and
(e)
Ensuring the issuance of Continuing Certificates of Occupancy
or certifications pursuant to N.J.A.C. 5:80-26.10.
4.
Resale and Rental.
(a)
Instituting and maintaining an effective means of communicating
information between owners and the Administrative Agent regarding
the availability of restricted units for resale or rental; and
(b)
Instituting and maintaining an effective means of communicating
information to low- and moderate-income households regarding the availability
of restricted units for resale or rental.
5.
Processing Request from Unit Owners.
(a)
Reviewing and approving requests from owners of restricted units
who wish to take out home equity loans or refinance during the term
of their ownership;
(b)
Reviewing and approving requests to increase sales prices from
owners of restricted units who wish to make capital improvements to
the units that would affect the selling price, such authorizations
to be limited to those improvements resulting in additional bedrooms
or bathrooms and the cost of central air conditioning systems; and
(c)
Processing requests and making determinations on requests by
owners of restricted units for hardship waivers.
6.
Enforcement.
(a)
Securing annually lists of all affordable housing units for
which tax bills are mailed to absentee owners and notifying all such
owners that they must either move back to their unit or sell it;
(b)
Securing from all developers and sponsors of restricted units,
at the earliest point of contact in the processing of the project
or development, written acknowledgement of the requirement that no
restricted unit can be offered, or in any other way committed, to
any person, other than a household duly certified to the unit by the
Administrative Agent;
(c)
The posting annually in all rental properties, including two-family
homes, of a notice as to the maximum permitted rent together with
the telephone number of the Administrative Agent where complaints
of excess rent can be made;
(d)
Sending annual mailings to all owners of affordable dwelling
units, reminding them of the notices and requirements outlined in
N.J.A.C. 5:80-26.18(d)4;
(e)
Establishing a program for diverting unlawful rent payments
to the municipality's Affordable Housing Trust Fund or other
appropriate municipal fund approved by the DCA;
(f)
Creating and publishing a written operating manual, as approved
by COAH, setting forth procedures for administering such affordability
controls; and
(g)
Providing reports to COAH as required.
7.
The Administrative Agent shall have authority to take all actions
necessary and appropriate to carry out its responsibilities hereunder.
