[Added 8-18-2020 by Ord.
No. 17-2020]
a. In Holmdel Builder's Association V. Holmdel Borough, 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-approved spending
plan may retain fees collected from nonresidential development.
c. In Re: Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council
on Affordable Housing, 221 N.J. 1 (2015), also known as the Mount
Laurel IV decision, the Supreme Court remanded COAH's duties to the
Superior Court. As a result, affordable housing development fee collections
and expenditures from the municipal affordable housing trust funds
to implement municipal Third Round Fair Share Plans through July 1,
2025 are under the Court's jurisdiction and are subject to approval
by the Court.
d. 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. 5:93-8.
[Added 8-18-2020 by Ord.
No. 17-2020]
a. This article shall not be effective until the Superior Court approves
the Borough's Development Fee Ordinance in accordance with N.J.A.C.
5:93-8.
b. The Borough of Roseland shall not spend development fees until the
Superior Court has approved a plan for spending such fees in conformance
with N.J.A.C. 5:93-8.
[Added 8-18-2020 by Ord.
No. 17-2020]
The following terms, as used in this article, shall have the
following meanings:
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Borough's Housing Element and
Fair Share Plan, and includes, but is not limited to, an inclusionary
development, a municipal construction project or a one-hundred-percent-affordable
development.
COAH or THE COUNCIL
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. Pursuant to the Supreme Court's Mount
Laurel IV opinion and order, any reference to COAH or the Council
shall be understood to refer to the Superior Court of New Jersey,
Law Division, Essex County.
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 permitted in N.J.A.C. 5:97-8.3.
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 (C. 54:1-35a through C. 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.
[Added 8-18-2020 by Ord.
No. 17-2020]
a. Imposed Fees.
1. Within all zoning districts, residential developers, the developers
of all new development of principal and accessory residential buildings,
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.
b. Eligible Exactions, Ineligible Exactions, and Exemptions for Residential
Development.
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.
3. 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.
4. The expansion or improvement of an existing residential structure
shall be exempt from any development fee requirement.
5. Other development shall be exempt from any development fee required
to the extent provided by the terms of any order entered by the Superior
Court of New Jersey.
[Added 8-18-2020 by Ord.
No. 17-2020]
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 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 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 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 the Borough of Roseland as a lien against the
real property of the owner.
6. Other development shall be exempt from any development fee required
to the extent provided by the terms of any Order entered by the Superior
Court of New Jersey.
[Added 8-18-2020 by Ord.
No. 17-2020]
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 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
in accordance with the instructions in Form N-RDF. The Tax assessor
shall verify exemptions and prepare estimated and final assessments
in keeping with the instructions 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 shall notify 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 Roseland 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).
h. 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.
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 Roseland. 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 the Borough of
Roseland 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.
[Added 8-18-2020 by Ord.
No. 17-2020]
a. There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the 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;
6. Proceeds from the sale of affordable units; and
7. Any other funds collected in connection with the Borough of Roseland's
affordable housing program.
c. In the event of a failure by the Borough of Roseland 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 Roseland, 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 non-compliant condition(s), and upon
a finding of continuing and deliberate non-compliance, 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. All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by the Court.
[Added 8-18-2020 by Ord.
No. 17-2020]
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 Roseland'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, 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 and specified
in the approved spending plan.
b. Funds shall not be expended to reimburse the Borough of Roseland
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 Roseland 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, in accordance
with N.J.A.C. 5:94-7.
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 monitoring requirements for the affordable housing
in compliance with the Housing Element and Fair Share Plan. Legal
or other fees related to litigation opposing affordable housing sites
or objecting to the Council's regulations and/or action are not eligible
uses of the affordable housing trust fund.
[Added 8-18-2020 by Ord.
No. 17-2020]
a. On an annual basis commencing with the first anniversary of the entry
of the Order granting a Final Judgment of Compliance and Repose, Borough
of Roseland shall provide annual reporting of trust fund activity
to the New Jersey Department of Community Affairs ("DCA"), COAH, or
Local Government Services ("LGS"), 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 DCA, COAH, or LGS. This reporting shall include an
accounting of all housing trust fund activity, including the collection
of development fees from residential and nonresidential developers,
payments in lieu of constructing affordable units on site, funds from
the sale of units with extinguished controls, barrier-free escrow
funds, rental income, repayments from affordable housing program loans,
and any other funds collected in connection with the Borough's housing
program, as well as to the expenditure of revenues and implementation
of the plan approved by the court.
[Added 8-18-2020 by Ord.
No. 17-2020]
a. The ability for Borough of Roseland to impose, collect and expend
development fees shall expire with its Judgment of Compliance and
Repose unless Borough of Roseland has filed an adopted Housing Element
and Fair Share Plan with the court or other appropriate jurisdiction,
has filed a Declaratory Judgment action and has received court approval
of its development fee ordinance. If Borough of Roseland fails to
renew its ability to impose and collect development fees prior to
the expiration of substantive certification, 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 (C. 52:27D-320). The Borough of Roseland 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 Roseland
retroactively impose a development fee on such a development. The
Borough of Roseland shall not expend development fees after the expiration
of judgment of compliance and repose.