[Added 12-7-1998 by Ord.
No. 25-1998; amended 4-18-2005 by Ord. No. 11-2005; 8-8-06 by Ord. No. 13-2006; 11-10-2009 by Ord. No. 2009-007]
This Article shall be known and may be cited as the "Development
Fee Ordinance of Spring Lake Borough."
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 PL 2008, c.46 section 8 (52:27D-329.2) and the Statewide
Non- Residential Development Fee Act, the Superior Court is authorized
to adopt and promulgate regulations necessary for the establishment,
implementing, review, monitoring and enforcement of municipal affordable
housing trust funds and corresponding spending plans.
[Amended 4-23-2019 by Ord. No. 2019-08]
C.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance 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 rules on development fees, codified
at N.J.A.C. 5:97-8.
A.
Imposed fees.
(1)
Within any zoning district permitting residential development, 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 shall be
required to pay a development fee of 6% of the equalized assessed
value for each additional unit permitted under such d variance. 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 1/2%
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.
B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
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.
(2)
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.
(3)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, 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 structure.
(4)
Developers of affordable housing projects shall be exempt from paying
a development fee.
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 pre-existing 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.
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 existing footprint,
reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from the payment of non-residential
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
Non-Residential 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 non-residential
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 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 non-residential development fees under these circumstances
may be enforceable by the Borough of Spring Lake 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 applicable approving authority shall direct
its staff to notify the Construction Official responsible for the
issuance of a building permit.
B.
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.
C.
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.
D.
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.
E.
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.
F.
Should Spring Lake Borough 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).
G.
Fifty percent 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.
H.
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 Spring Lake Borough 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 Spring Lake Borough.
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.
[Amended 4-23-2019 by Ord. No. 2019-08]
A.
There is hereby created a separate, interest-bearing Housing Trust
Fund bank account for the purpose of receiving development fees from
residential and nonresidential developers. All development fees paid
by developers pursuant to this article shall be deposited in this
fund. No money shall be expended from the Housing Trust Fund unless
the expenditure conforms to a spending plan approved by the Superior
Court or the Council on Affordable Housing, whichever is applicable.
If such Housing Trust Fund is already in existence as of the date
of passage of this article, this shall serve as authority for all
increased fees to be deposited therein as well. Any interest accrued
on this account shall only be used on eligible affordable housing
activities approved by COAH.
B.
If the Superior Court determines that Spring Lake Borough is not
in conformance with COAH rules on development fees as to any matter
remaining under the Superior Court's jurisdiction, the Superior Court
is authorized to direct the manner in which all development fees collected
pursuant to this article shall be expended. Such authorization is
pursuant to this article, COAH's rules on development fees, and the
written authorization from the governing body to the bank in which
the Housing Trust Fund is located.
A.
Money deposited in a Housing Trust Fund may be used consistent with
the housing plan element previously adopted or any later revisions
or later adopted replacement plan, as well as any spending plan which
may be subsequently adopted to further refine the housing element.
Such activities may include, but are not necessarily limited to, housing
rehabilitation, housing construction, and regional contribution agreements.
B.
No more than 20% of the revenues shall be expended on administrative
costs necessary to develop, revise or implement the housing element.
Examples of eligible administrative activities include personnel,
consultant services, legal services, space costs, consumable supplies
and rental or purchase of equipment.
As used in this article, the following terms shall have the
meanings indicated:
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 Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
The legal or beneficial owner or owners of a lot or of any
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. 5:97-8.3.
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.
[Amended 4-23-2019 by Ord. No. 2019-08]
A.
Once this article is adopted, such must be submitted to the Superior
Court for review and approval.
B.
The Borough must submit a written authorization to the Superior Court
from the Borough Council and the bank in which the Housing Trust Fund
is located within seven days of readoption, which allows the Superior
Court to direct expenditure of the funds if Spring Lake is not in
conformance with COAH rules on development fees.
C.
Once this article is approved, as revised, Spring Lake is empowered
to continue imposing and collecting fees at the higher percentages
(5) pursuant to N.J.A.C. 5:94-6.6(a) and 6.7(a).
D.
The Borough must receive Superior Court approval of its updated spending
plan before disbursement of these funds prior to the grant of a third-round
judgment of compliance and repose from the Superior Court.
[Amended 4-23-2019 by Ord. No. 2019-08]
A.
This article shall not be effective until approved by the Superior
Court of New Jersey.
B.
This article shall become null and void if Spring Lake withdraws
or dismisses its declaratory judgment action with the Superior Court,
fails to obtain a final judgment of compliance and repose from the
Superior Court, allows its final judgment of compliance and repose
to lapse or its final judgment of compliance and repose from the Superior
Court is vacated or dismissed.
