[Added 10-17-2005 by Ord. No. 2005-28; amended 9-5-2006 by Ord. No. 2006-14; 5-22-2018 by Ord. No. 2018-08]
A. Pursuant to directives of the Superior Court in the third round affordable
housing proceedings encaptioned in In the Matter of the Township of
Lumberton, Docket No. BUR-L-407-14 (Mount Laurel), if the Township
or its land use boards permit, either through future rezonings or
the grant of variances, multifamily or single-family attached development
that is "approvable" and "developable," as defined in N.J.A.C. 5:93.1
et seq., at a gross density of six units to the acre or more, or
permits an increase in the already permitted density of a multifamily
or single-family attached zone or development resulting in six or
more net new dwelling units on the property, the Township and/or its
land use boards shall require that an appropriate percentage of the
residential units shall be set aside for low- and moderate-income
households in accordance with N.J.A.C. 5:93.1 et seq. This requirement shall apply to any multifamily or single-family
attached residential development, including the residential portion
of a mixed-use project which consists of six or more net new residential
units, whether permitted by a zoning amendment, a variance granted
by the Township's land use boards, or adoption of a redevelopment
plan or amended redevelopment plan in areas in need of redevelopment
or rehabilitation. Nothing herein precludes the Township from imposing
an affordable housing set-aside in a development not required to have
a set-aside pursuant to the provisions hereof consistent with N.J.S.A.
52:27D-311(h) and other applicable law. Consistent with N.J.A.C. 5:93.1
et seq., for inclusionary projects in which low- and moderate-income
units are to be offered for "sale," the appropriate set-aside percentage
is 20%; for inclusionary projects for which the low- and moderate-income
units are to be offered for "rent," the appropriate set-aside percentage
is 15%. This requirement does not create any entitlement for a property
owner or applicant for a zoning amendment, variance, or adoption of
a redevelopment plan or amended redevelopment plan in areas in need
of redevelopment or rehabilitation, or for approval of any particular
proposed project. This requirement does not apply to any sites or
specific zones otherwise identified in judicially approved settlement
agreements under Docket No. BUR-L-407-14 (Mount Laurel) or the Township's
judicially approved third round Housing Element and Fair Share Plan
(collectively "Compliance Plan"), for which density and set-aside
standards shall be governed by the specific standards set forth therein.
A property shall not be permitted to be subdivided so as to avoid
meeting the above affordable housing requirement.
[Added 6-26-2018 by Ord.
No. 2018-14]
A. Purpose. This section establishes standards for the collection, maintenance,
and expenditure of development fees that are consistent with COAH's
regulations developed in response to P.L. 2008, c. 46, Section 8 (N.J.S.A.
52:27D-329.2) and Sections 32 through 38 (N.J.S.A. 40:55D-8.1 through
40:55D-8.7) (the Statewide Non-Residential Development Fee Act). Fees
collected pursuant to this section shall be used for the sole purpose
of providing very-low-, low- and moderate-income housing in accordance
with a Court-approved spending plan.
B. Basic requirements.
(1) This section shall not be effective until approved by the Court.
(2) The Township of Lumberton shall not spend development fees until
the Court has approved a plan for spending such fees (spending plan).
C. Definitions. The following terms, as used in this section, shall
have the following meanings:
AFFORDABLE HOUSING DEVELOPMENT
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 housing development.
COAH or the COUNCIL
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
DEVELOPER
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.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property
as authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990), and the Fair Housing Act of 1985, N.J.S.A. 52:27D-301
et seq., and regulated by applicable COAH rules.
EQUALIZED ASSESSED VALUE
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 (N.J.S.A. 54:1-35a through 54:1-35c).
GREEN BUILDING STRATEGIES
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.
D. Residential development fees.
(1) Imposition of fees.
(a)
Within the Township of Lumberton, 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 1.5% of the equalized assessed value for all new
residential development. 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) Eligible exactions, ineligible exactions and exemptions for residential
developments.
(a)
Affordable housing developments and/or developments where the
developer has made a payment in lieu of on-site construction of affordable
units, if permitted by ordinance or by agreement with the Township
of Lumberton, shall be exempt from the payment of development fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption of this section shall be exempt from
the payment of development fees, unless the developer seeks a substantial
change in the original approval. Where site plan approval is not applicable,
the issuance of a zoning permit and/or construction permit shall be
synonymous with preliminary or final site plan approval for the purpose
of determining the right to an exemption. In all cases, the applicable
fee percentage shall be determined based upon the development fee
ordinance in effect on the date that the construction permit is issued.
(c)
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.
(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.
E. Nonresidential development fees.
(1) Imposition of fees.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, 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.
(b)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments 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.
(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 pre-existing 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 a 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.
(2) Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(a)
The nonresidential portion of a mixed-use inclusionary or market-rate
development shall be subject to a 2.5% development fee, unless otherwise
exempted below.
(b)
The 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.
(c)
Nonresidential developments shall be exempt from the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to the Statewide Non-Residential Development Fee
Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7), as specified in Form
N-RDF, "State of New Jersey Non-Residential Development Certification/Exemption."
Any exemption claimed by a developer shall be substantiated by that
developer.
(d)
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to the Statewide Non-Residential
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.
(e)
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 Lumberton as a lien against
the real property of the owner.
F. Collection procedures.
(1) 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 construction permit and to notify the Tax Assessor
of the grant of such approval.
(2) For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, "State of New Jersey Non-Residential
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.
(3) The Construction Official responsible for the issuance of a construction
permit shall notify the Township Tax Assessor of the issuance of the
first construction permit for a development which is subject to a
development fee.
(4) 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.
(5) 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.
(6) 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.
(7) Should the Township of Lumberton 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).
(8) Except as provided in Subsection
E(1)(c) hereinabove, 50% of the initially calculated development fee shall be collected at the time of issuance of the construction permit. The remaining portion shall be collected at the time of issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the time of issuance of the construction permit and that determined at the time of issuance of the certificate of occupancy.
(9) Appeal of development fees.
(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 Township of Lumberton.
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 Township of
Lumberton. 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.
G. Affordable Housing Trust Fund.
(1) There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Township of Lumberton for the purpose of depositing development fees
collected from residential and nonresidential developers and proceeds
from the sale of units with extinguished controls.
(2) The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(a)
Payments in lieu of on-site construction of a fraction of an
affordable unit, where permitted by ordinance or by agreement with
the Township of Lumberton;
(b)
Funds contributed by developers to make 10% of the adaptable
entrances in a townhouse or other multistory attached dwelling unit
development accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Lumberton's affordable
housing program.
(3) Compliance with requirements.
(a)
In the event of a failure by the Township of Lumberton 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 Township of Lumberton, or, if not practicable, then within
the county or the housing region.
(b)
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.
(4) Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
H. Use of funds.
(1) The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the Affordable Housing Trust Fund
may be used for any activity approved by the Court to address the
Township of Lumberton'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
permitted by the Court and specified in the approved spending plan.
(2) Funds shall not be expended to reimburse the Township of Lumberton
for past housing activities.
(3) 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 5, in which Lumberton is located.
(a)
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. The specific programs
to be used for affordability assistance shall be identified and described
within the spending plan.
(b)
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 specific programs
to be used for very-low-income affordability assistance shall be identified
and described within the spending plan.
(c)
Payments in lieu of constructing affordable housing units on
site, if permitted by ordinance or by agreement with the Township
of Lumberton, and funds from the sale of units with extinguished controls,
shall be exempt from the affordability assistance requirement.
(4) The Township of Lumberton may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including its programs for affordability assistance.
(5) 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 or a rehabilitation program.
(a)
In the case of a rehabilitation program, the administrative
costs of the rehabilitation program shall be included as part of the
20% of collected development fees that may be expended on administration.
(b)
Administrative funds may be used for income qualification of
households, monitoring the turnover of sale and rental units, and
compliance with COAH's monitoring requirements. Legal or other fees
related to litigation opposing affordable housing sites or related
to appealing a judgment from the Court are not eligible uses of the
Affordable Housing Trust Fund.
I. Monitoring. The Township of Lumberton shall provide annual reporting
of Affordable Housing Trust Fund activity to the State of New Jersey,
Department of Community Affairs, Council on Affordable Housing or
Local Government Services or other entity designated by the State
of New Jersey, with a copy provided to Fair Share Housing Center and
posted on the municipal website, using forms developed for this purpose
by the New Jersey Department of Community Affairs, Council on Affordable
Housing or Local Government Services. The reporting shall include
an accounting of all Affordable Housing Trust Fund activity, including
the sources and amounts of funds collected and the amounts and purposes
for which any funds have been expended. Such reporting shall include
an accounting of development fees collected from residential and nonresidential
developers, payments in lieu of constructing affordable units on site
(if permitted by ordinance or by agreement with the Township), funds
from the sale of units with extinguished controls, barrier-free escrow
funds, rental income from Township-owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Lumberton's affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the spending plan approved by the Court.
J. Ongoing collection of fees.
(1) The ability for the Township of Lumberton to impose, collect and
expend development fees shall expire with the expiration of the repose
period covered by its judgment of compliance unless the Township of
Lumberton has first filed an adopted Housing Element and Fair Share
Plan with the Court or with a designated state administrative agency,
has petitioned for a judgment of compliance from the Court or for
substantive certification or its equivalent from a state administrative
agency authorized to approve and administer municipal affordable housing
compliance and has received approval of its development fee ordinance
from the entity that will be reviewing and approving the Housing Element
and Fair Share Plan.
(2) If the Township of Lumberton fails to renew its ability to impose
and collect development fees prior to the expiration of its judgment
of compliance, it may be subject to forfeiture of any or all 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 (N.J.S.A.
52:27D-320).
(3) The Township of Lumberton 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; nor shall
the Township of Lumberton retroactively impose a development fee on
such a development. The Township of Lumberton also shall not expend
any of its collected development fees after the expiration of its
judgment of compliance.