[Amended 2-26-2019 by Ord. No. 19-06[1]]
[1]
Editor's Note: This ordinance also amended the title of this
article, which was formerly Affordable Housing Zone.
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, 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, § 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 40:55D-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.
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, §§ 8 and 32
through 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.
D.
This article shall not be effective until approved by COAH pursuant
to N.J.A.C. § 5:93-8.8(a).
The Borough of Oradell shall not spend development fees until
COAH has approved a plan for spending such fees and Oradell has received
third-round substantive certification from COAH or a judgment of compliance.
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,[1] which previously had primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state. Pursuant to the opinion and order of the
New Jersey Supreme Court dated March 10, 2015, in the matter of "In
re Adoption of N.J.A.C. 5:96 and 5:97 by N.J. Council on Affordable
Housing (M-392-14) 067126," any reference to COAH or the Council shall
be understood to refer to the Superior Court of New Jersey, Law Division-Bergen
County.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development, including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
Funds paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:93-8.
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 §§ 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: See N.J.S.A. 52:27D-301 et seq.
A.
Imposed fees.
(1)
Within all zone districts, 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.
B.
Eligible exactions, ineligible exactions and exemptions for
residential development.
(1)
Affordable housing developments shall be exempt from development
fees. All other forms of new construction shall be subject to development
fees unless exempted below.
(2)
Developers of low- and moderate-income units shall be exempt
from paying development fees.
(3)
Developments that have received preliminary or final approval
prior to the effective date of the Borough's amended development
fee ordinance shall be subject to the law in effect at the time of
such approval, unless the developer seeks a substantial change in
the approval.
(4)
All single-family residential additions, renovations and accessory
structures shall be exempt; however, all new residential dwelling
units shall be subject to a development fee.
(5)
All multifamily additions, renovations and accessory structures
not requiring site plan approval shall be exempt; however, all new
residential dwelling units shall be subject to 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 preexisting 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)
The 2.5% fee shall not apply to developers of any not-for-profit
use; federal, state and municipal government uses; churches and other
places of worship; and public schools.
(4)
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.
(5)
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.
(6)
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 Oradell 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.
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
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 Oradell 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 § 37 of P.L. 2008,
c. 46 (N.J.S.A. 40:55D-8.6).
H.
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 the time of issuance of the building permit and that determined
at issuance of the 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 Oradell. 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
Oradell. 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.
A.
There is hereby created a separate, interest-bearing housing
trust fund in Valley National Bank for the purpose of depositing development
fees collected from residential and nonresidential developers and
proceeds from the sale of units with extinguished controls. All development
fees paid by developers pursuant to this article shall be deposited
in this fund.
B.
The following additional funds shall be deposited in the 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
Oradell's affordable housing program.
C.
No funds shall be expended from the Affordable Housing Trust
Fund unless the expenditure conforms to a spending plan approved by
COAH. All interest accrued in the housing trust fund shall only be
used on eligible affordable housing activities approved by COAH.
A.
Funds deposited in the housing trust fund may be used for any
activity approved by COAH to address the Borough's low- and moderate-income
housing obligation and may be set up as a grant or revolving loan
program. Such activities may 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; ECHO housing; 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; the purchase of land for
low- and moderate-income housing; improvement of land to be used for
affordable housing; purchase of housing; extensions and/or improvements
of roads and infrastructure to low- and moderate-income housing sites;
financial assistance designed to increase affordability or administration
necessary for the implementation of the Housing Element and Fair Share
Plan, or any other activity as permitted pursuant to N.J.A.C. § 5:93-8.
The expenditure of all funds shall conform to a spending plan approved
by COAH.
B.
Development fee revenues shall not be expended to reimburse
the Borough of Oradell for past housing activities.
C.
After subtracting development fees collected to finance a rehabilitation
program or a new construction project that are necessary to address
the Borough of Oradell affordable housing obligation, at least 30%
of the balance remaining 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 third-round 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 Oradell 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 the revenues collected from development
fees shall 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.
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 objecting to the Council's
regulations and/or action are not eligible uses of the Housing Trust
Fund. Development fee administrative costs are calculated and may
be expended at the end of each year or upon receipt of the fees.
The Borough of Oradell shall complete and return to COAH all
monitoring forms included in monitoring requirements related to 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
of Oradell's housing program, as well as to the expenditure of
revenues and implementation of the plan certified by COAH. All monitoring
reports shall be completed on forms designed by COAH.
The ability for the Borough of Oradell to impose, collect and
expend development fees shall expire with its substantive certification
or judgment of compliance unless the Borough of Oradell has filed
an adopted Housing Element and Fair Share Plan with COAH, has petitioned
for substantive certification or judgment of compliance, and has received
COAH's approval of its development fee ordinance. If the Borough
of Oradell fails to renew its ability to impose and collect development
fees prior to the expiration of the substantive certification or judgment
of compliance, 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 § 20 of P.L. 1985, c. 222 (N.J.S.A.
52:27D-320). The Borough of Oradell shall not impose a development
fee on a development that receives preliminary or final approval after
the expiration of its substantive certification or judgment of compliance,
nor shall the Borough of Oradell retroactively impose a development
fee on such a development. The Borough of Oradell will not expend
development fees after the expiration of its substantive certification
or judgment of compliance.
