[Added 12-4-2019 by Ord. No. 19-28[1]]
[Added 12-4-2019 by Ord. No. 19-28]
A.
In Holmdel Builder's Ass'n 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 (N.J.S.A. 52:27D-329.2) and
the Statewide Nonresidential Development Fee Act (N.J.S.A. 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
the Council or a court of competent jurisdiction and have an approved
spending plan may retain fees collected from nonresidential development.
C.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance with P.L. 2008, c. 46, Sections 8 and 32-38. Fees
collected pursuant to this article shall be used for the sole purpose
of providing low- and moderate-income housing. This article shall
be interpreted within the framework of COAH's prior round rules on
development fees, codified at N.J.A.C. 5:93-8[1] and P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2)
and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7) and the COAH settlement in "In the Matter of the Borough
of Pompton Lakes, Passaic County, New Jersey and Affordable Housing
Certification, Superior Court of New Jersey, Law Division, Docket:
PAS-L-002397-15."
[1]
Editor's Note: The provisions of N.J.A.C. 5:93-1 et seq. expired
10-16-2016.
[Added 12-4-2019 by Ord. No. 19-28]
A.
This article shall not be effective until approved by the Court.
[Added 12-4-2019 by Ord. No. 19-28]
The following terms, as used in this article, 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 New Jersey Council on Affordable Housing established
under the Fair Housing Act.
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.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:93-8.[1]
The assessed value of a properly divided by the current average
ration 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).
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.
[1]
Editor's Note: The provisions of N.J.A.C. 5:93-1 et seq. expired
10-16-2016.
[Added 12-4-2019 by Ord. No. 19-28]
A.
Imposed fees.
(1)
Within all zoning district(s), residential developers, except
for developers of the types of development specifically exempted below,
shall pay a fee of 1.5% of the equalized assessed value for residential
development provided no increased density is permitted.
(2)
When an increase in residential density pursuant to N.J.S.A.
40:55D-70d(5) (known as a "d" variance) has been permitted, developers
may be required to 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.
Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal 1.5%
of the equalized assessed value on the first two units; and the specified
higher percentage up to 6% of the equalized assessed value for the
two additional units, provided zoning on the site has not changed
during the two-year period preceding the filing of such a variance
application.
(3)
Eligible exactions, ineligible exactions, and exemptions for
residential development.
(a)
Affordable housing developments and developments where the developer
has made a payment in lieu of on-site construction of affordable units
shall be exempt from development fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption 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)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, unless the owner resided in the previous dwelling for
a period of one year or more prior to obtaining a demolition permit,
or is expanded, if the expansion is not otherwise exempt from the
development fee requirement. The development fee shall be calculated
on the increase in the equalized assessed value of the improved or
replaced structure as compared to the previous structure.
(d)
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.
[Added 12-4-2019 by Ord. No. 19-28]
A.
Imposed fees.
(1)
Within all zoning districts, nonresidential developers, except
for developers of the types of development specifically exempted below,
shall pay a fee equal to two and 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 below, 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 pre-existing land and improvement and the equalized assessed
value of the newly improved structure, i.e., made an 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 nonresidential
development.
(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 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 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 non- residential
development, whichever is later.
(5)
If a property which was exempted from the collection of a non-
residential 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 Borough of Pompton Lakes
as a lien against the real property of the owner.
[Added 12-4-2019 by Ord. No. 19-28]
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 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 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 the Borough of Pompton Lakes 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.
Except as provided in § 190-126A(3) above, 50% of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall 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.
I.
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 Borough of Pompton Lakes.
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.
(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 Borough of
Pompton Lakes. 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.
[Added 12-4-2019 by Ord. No. 19-28]
A.
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Borough of Pompton Lakes Chief Financial
Officer for the purpose of depositing development fees collected from
residential and nonresidential developers and proceeds from the sale
of units with extinguished controls.
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
Pompton Lakes' affordable housing program.
C.
In the event of a failure by the Borough of Pompton Lakes to comply
with trust fund monitoring and reporting requirements or to submit
accurate monitoring reports; or a failure to comply with the conditions
of the judgment of compliance or a revocation of the judgment of compliance;
or a failure to implement the approved Spending Plan and to expend
funds within the applicable required time period as set forth in In
re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J.
Super. 563); or the expenditure of funds on activities not approved
by the Court; or for other good cause demonstrating the unapproved
use(s) of funds, the Court may authorize the State of New Jersey,
Department of Community Affairs, Division of Local Government Services
(LGS), to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the Borough of Pompton Lakes, or, if not practicable, then
within the County or the Housing Region. Any party may bring a motion
before the Superior Court presenting evidence of such condition(s),
and the Court may, after considering the evidence and providing the
municipality a reasonable opportunity to respond and/or to remedy
the noncompliant condition(s), and upon a finding of continuing and
deliberate noncompliance, determine to authorize LGS to direct the
expenditure of funds in the trust fund. The Court may also impose
such other remedies as may be reasonable and appropriate to the circumstances.
D.
All interest accrued in the housing trust fund shall only be used
on eligible housing activities approved by the Court.
[Added 12-4-2019 by Ord. No. 19-28]
A.
The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the housing trust fund may be used
for any activity approved by the Court to address the Borough of Pompton
Lakes' 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, rehabilitation, new construction of affordable
housing units and related costs, accessory apartment, market to affordable,
or 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, or
any other activity as permitted pursuant to N.J.A.C. 5:93-8.16[1] and specified in the approved spending plan.
[1]
Editor's Note: The provisions of N.J.A.C. 5:93-1 et seq. expired
10-16-2016.
B.
Funds shall not be expended to reimburse the Borough of Pompton Lakes
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 down payment assistance,
security deposit assistance, low-interest loans, rental assistance,
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.
(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 of Pompton Lakes 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.
E.
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 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 reporting and monitoring requirements that have
been approved by the Court. Legal or other fees related to litigation
opposing affordable housing sites or objecting to or appealing Court's
approval of Pompton Lake' Housing Element and Fair Share Plan are
not eligible uses of the affordable housing trust fund.
[Added 12-4-2019 by Ord. No. 19-28]
On an annual basis commencing with the first anniversary of
the entry of the order granting a final judgment of compliance and
repose to Pompton Lakes, the Borough of Pompton Lakes shall report
all activity in connection with its affordable housing trust fund
to the New Jersey Department of Community Affairs [either the Division
of Local Government Services or the Council on Affordable Housing
(COAH), whichever entity is designated by the State of New Jersey],
with a copy provided to Fair Share Housing Center, under the Fair
Housing Act and Approval of its Amended Spending Plan, Docket No.:
PAS-L-2361-15, and with a posting of same on the municipal website,
using forms previously developed for this purpose by COAH. The reporting
shall include all sources and amounts collected/earned and the amounts
and purposes for which funds have been expended.
[Added 12-4-2019 by Ord. No. 19-28]
A.
The ability for the Borough of Pompton Lakes to impose, collect and
expend development fees shall expire with its judgment of compliance
and repose unless the Borough of Pompton Lakes has filed an adopted
Housing Element and Fair Share Plan with the Court or with COAH or
its successor agency designated by the State of New Jersey, has petitioned
for a judgment of compliance and repose or substantive certification,
and has received the Court's or COAH's approval of its development
fee ordinance. If the Borough of Pompton Lakes fails to renew its
ability to impose and collect development fees prior to the expiration
of its judgment of compliance and repose, 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). The Borough of Pompton Lakes shall not
impose a residential development fee on a development that receives
preliminary or final site plan approval after the expiration of its
judgment of compliance and repose, nor shall the Borough of Pompton
Lakes retroactively impose a development fee on such a development.
The Borough of Pompton Lakes shall not expend development fees after
the expiration of its judgment of compliance and repose.
B.
It is the intent of the Borough Council to incorporate the additions,
amendments and/or supplements contained in this article into the Code.
C.
A copy of this Ordinance shall be available for public inspection
at the offices of the Borough Clerk.
