[1]
Editor's Note: Prior ordinance history includes Ordinance
Nos. 97-12, 2001-30, 2002-04, 2004-37, 2005-08, 2005-34, 2006-12.
[Amended 7-28-2020 by Ord. No. 2020-08]
a.
Purpose.
1.
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).
2.
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and
the Statewide Non-Residential 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 were under the jurisdiction of
COAH and that are now before a court of competent jurisdiction and
have a Court-approved Spending Plan may retain fees collected from
nonresidential development.
3.
This article 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, Sections 8
and 32-38 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential
Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected
pursuant to this article shall be used for the sole purpose of providing
low- and moderate-income housing in accordance with a Court-approved
Spending Plan.
[Amended 7-28-2020 by Ord. No. 2020-08]
[Amended 7-28-2020 by Ord. No. 2020-08]
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 housing development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
The construction office or his/her designee.
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 at N.J.A.C. 5:97-8.3.[1]
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 c).
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.
The Township of Holmdel.
[1]
Editor's Note: The provisions of N.J.A.C. 5:97 expired
6-2-2015.
[Amended 7-28-2020 by Ord. No. 2020-08]
a.
Imposition of fees.
1.
Within the Township of Holmdel, 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 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 6% 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.
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.
b.
Eligible exactions, ineligible exactions and exemptions for residential
developments.
1.
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality, 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.
(a)
A substantial change is a revision to an approved preliminary
or final site plan or subdivision which meets any one of the following
limitations:
(1)
Five feet of improvements into any yard setback;
(2)
Five feet in building height;
(3)
One percent in floor area ratio;
(4)
One percent in impervious coverage;
(5)
Five feet in building spacing or location;
(6)
Three parking spaces;
(7)
Five feet in driveway locations;
(8)
One percent in site disturbances;
(9)
Five feet in lot line locations;
(10)
Any change in residential density;
(11)
Any new variances pursuant to N.J.S.A. 40:55D-70c.
(b)
A substation of similar landscaping material, lighting fixtures
and signage is not a substantial change as long as there is no change
in approved quantities or dimensions.
3.
Developers of educational facilities shall be exempt from paying
a development fee.
4.
Developers of houses of worship and other uses that are entitled
to exemption from New Jersey real property tax shall be exempt from
the payment of a development fee, provided that such development does
not result in the construction of any additional housing or residential
units, including assisted living and continuing care retirement communities.
5.
A development shall be exempt from an increase in the percentage
of the development fee, provided the building permit was issued prior
to the effective date of this article, or prior to any subsequent
ordinance increasing the fee percentage. The developer shall have
the right to pay the fee based on the percentage in effect on the
date the building permit was issued.
6.
Owner-occupied residential structures demolished and replaced as
a result of fire, flood or natural disaster shall be exempt from a
development fee.
[Amended 7-28-2020 by Ord. No. 2020-08]
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 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 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 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.
4.
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the development fee of 2.5% unless
otherwise exempted below.
b.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
1.
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.
2.
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 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.
3.
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.
4.
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 Holmdel as a lien against the
real property of the owner.
5.
Pursuant to P.L. 2009, c. 90 and P.L. 2011, c. 122, the nonresidential
statewide development fee of 2.5% for nonresidential development is
suspended for all nonresidential projects that received preliminary
or final site plan approval subsequent to July 17, 2008, until July
1, 2013, provided that a permit for the construction of the building
has been issued prior to January 1, 2015.
[Amended 7-28-2020 by Ord. No. 2020-08]
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 construction permit.
b.
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.
c.
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.
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 Holmdel 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 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.
i.
Appeal of development fees.
1.
A developer may challenge the equalized assessment component of 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 Holmdel. 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. Any other legal
challenge to the imposition of a residential development fee challenge
shall be brought in the Superior Court of New Jersey as a prerogative
writ complaint.
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
Holmdel. 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.
[Amended 7-28-2020 by Ord. No. 2020-08]
a.
There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Township of Holmdel 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 a fraction of an affordable
unit, where permitted by ordinance or by agreement with the Township
of Holmdel;
2.
Funds contributed by developers to make 10% of the adaptable entrances
in a townhouse or other multistory attached dwelling 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 Holmdel Township's
affordable housing program.
c.
In the event of a failure by the Township of Holmdel 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 Holmdel, or, if not practicable, then within
the County or the Housing Region.
d.
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.
e.
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
[Amended 7-28-2020 by Ord. No. 2020-08]
a.
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 Holmdel'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.
b.
Funds shall not be expended to reimburse the Township of Holmdel
for past housing activities.
c.
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 4, in which Holmdel Township is located.
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. The specific programs
to be used for affordability assistance shall be identified and described
within the Spending Plan.
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 specific programs
to be used for very-low-income affordability assistance shall be identified
and described within the Spending Plan.
3.
Payments in lieu of constructing affordable housing units on site,
if permitted by ordinance or by agreement with the Township of Holmdel,
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
d.
The Township of Holmdel 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.
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 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. 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. 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 securing or appealing
a judgment from the Court are not eligible uses of the Affordable
Housing Trust Fund.
[Amended 7-28-2020 by Ord. No. 2020-08]
The Township of Holmdel 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 Holmdel Township's affordable housing
programs, as well as an accounting of the expenditures of revenues
and implementation of the Spending Plan approved by the Court.
[Amended 7-28-2020 by Ord. No. 2020-08]
a.
The ability for the Township of Holmdel 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 Holmdel
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 Court
or the entity that will be reviewing and approving the Housing Element
and Fair Share Plan.
b.
If the Township of Holmdel 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).
c.
The Township of Holmdel 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 Holmdel retroactively impose a development fee on
such a development. The Township of Holmdel also shall not expend
any of its collected development fees after the expiration of its
Judgment of Compliance.
