[Ord. No. 2021-1262, 6-14-2021[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 Council
on Affordable Housing's (COAH's) adoption of rules. This
article establishes standards for the collection, maintenance, and
expenditure of development fees pursuant to COAH's rules. 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.
[1]
Editor's Note: This ordinance also provided for the repeal
of Ord. Nos. 2007-1747 and 2009-1075.
[Ord. No. 2021-1262, 6-14-2021]
The following terms, as used in this article, shall have the
following meanings:
Funds paid by an individual, person, partnership, association,
company or corporation for the improvement of property as provided
by this article.
The value of a property determined by the Municipal Tax Assessor
through a process designed to ensure that all property in a municipality
is assessed at the same assessment ratio or ratios required by law.
Estimates at the time of issuance of a building permit may be obtained
utilizing estimates for construction cost. Final equalized assessed
value will be determined at project completion by the Municipal Tax
Assessor.
[Ord. No. 2021-1262, 6-14-2021]
Unless authorized by future changes in state law and adoption
of a future ordinance by the Mayor and Council of the Borough of Manville
incorporating any such future changes, no affordable housing fees
shall be imposed on residential development in the Borough.
[Ord. No. 2021-1262, 6-14-2021]
a.
Developers within all zoning districts shall pay a fee of 2.5% of
the equalized assessed value for all nonresidential development.
b.
If an increase in floor area ratio is approved pursuant to N.J.S.A.
40:55D-70d(4), then the additional floor area realized (above what
is permitted by right under the existing zoning) will incur an additional
development fee of 2.5% (thus 5% total) of the equalized assessed
value for such increased floor ratio. However, if the zoning on a
site has changed during the two-year period preceding the filing of
such a variance application, then the base floor area for the purposes
of calculating the bonus development fee shall be the highest floor
area permitted by right during the two-year period preceding the filing
of the variance application.
c.
In addition to nonresidential new construction, the 2.5% development
fee shall be imposed and collected when an existing structure is expanded
and the equalized assessed value is increased as a result of such
expansion. The development fee of 2.5% shall not apply to an increase
in equalized assessed value resulting from alterations, renovations
and repairs within the existing footprint of the structure.
d.
The nonresidential portion of a mixed-use inclusionary or market-rate
development shall be subject to the 2.5% development fee.
e.
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 nonresidential land and improvements and
the equalized assessed value of the nonresidential portion of the
newly improved structure, i.e., nonresidential 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.
[Ord. No. 2021-1262, 6-14-2021]
a.
Developments that have received preliminary or final approval prior
to the imposition of a municipal development fee shall be exempt from
development fees unless the developer seeks a substantial change in
the approval.
b.
All nonresidential construction of buildings or structures on property
used by churches, synagogues, mosques, and other houses of worship,
and property used for educational purposes, which are tax-exempt pursuant
to N.J.S.A. 54:4-3.6, shall be exempt from the imposition of a nonresidential
development fee pursuant to this article, provided that the property
continues to maintain its tax exempt status under that statute for
a period of at least three years from the date of issuance of the
certificate of occupancy.
c.
In addition, any property exempted by state law, including as set
forth at N.J.S.A. 40:55D-8.4, may be exempt from the imposition of
a nonresidential development fee, as specified in Form N-RDF, State
of New Jersey Non-Residential Development Certification/Exemption,
or such other forms or regulations as may be applicable. 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 this section shall be subject to it at
such time the basis for the exemption set forth in this subsection
no longer applies (by way of example, if a previously exempt building
is no longer used for a religious or educational purpose), and shall
make the payment of the nonresidential development fee within six
months of such event, or prior to the issuance of the final certificate
of occupancy of such nonresidential development.
e.
Any exemption claimed by a developer shall be substantiated by that
developer, who shall have the burden of proof in showing entitlement
to the claimed exemption.
[Ord. No. 2021-1262, 6-14-2021]
a.
Prior to requesting a building permit, the developer shall submit
to the Tax Assessor a request for a calculation of the development
fee amount. The amount of the development fee shall be calculated
based upon the difference in the equalized assessed value of the property
before and after the development activity which is subject to the
development fee.
b.
Fifty percent of the development fee must be paid prior to the issuance of the building permit, and the balance prior to the issuance of a certificate of occupancy (CO). Payment shall be made directly to the Treasurer, State of New Jersey, as set forth in § 33-107 of this article. The amount of the development fee shall be based initially on an estimate by the Tax Assessor of the increase in equalized assessed value attributable to the improvements to be constructed.
c.
The remaining portion of the development fee must be paid prior to
the issuance of the CO. At that time the Tax Assessor shall calculate
the actual equalized assessed value, which may differ from the estimate
provided prior to the issuance of the building permit. The amount
of the fee will at that time be recalculated, and the developer shall
be responsible for paying the difference between the development free
amount and the amount paid prior to issuance of the building permit.
[Ord. No. 2021-1262, 6-14-2021]
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.
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 any 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 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 (N.J.S.A. 40:55D-8.6).
h.
Prior to the issuance of a building permit, the developer shall pay
50% of the calculated development fee, by payment of same to the Treasurer,
State of New Jersey, and submitting same to the Office of Local Planning
Services, New Jersey Department of Community Affairs, for deposit
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) in accord
with Form N-RDF, and obtaining from the state a receipt of payment
of same. When preparing the building permit, the Construction Official
is to compare the developer's receipt of payment from the New
Jersey Affordable Trust Fund to the copy of the form N-RDF in the
construction permit file and, if the sums match, then issue the building
permit. A nonresidential developer may deposit with the State Treasurer
the development fees as calculated by the municipality under protest,
and the local code enforcement official shall thereafter issue the
certificate of occupancy provided that the construction is otherwise
eligible for a certificate of occupancy.
i.
A final certificate of occupancy (CO) shall not be issued for any
nonresidential development until such time as the fee imposed pursuant
to this section has been paid by the developer. The developer shall
be responsible for paying to the New Jersey Affordable Housing Trust
Fund the difference between the fee calculated upon issuance of the
building permit and the final fee upon the issuance of the CO. Prior
to the issuance of a CO, the developer shall pay the balance of the
development fee, by payment of same to the Treasurer, State of New
Jersey, and submitting same to the Office of Local Planning Services,
New Jersey Department of Community Affairs for deposit 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) in accord with Form
N-RDF, and obtaining from the state a receipt of payment of same prior
to the issuance of a CO. When preparing the CO, the Construction Official
is to compare the developer's receipt of payment from the New
Jersey Affordable Trust Fund to the copy of the final form N-RDF in
the construction permit file and, if the sums match, then issue the
certificate of occupancy.
[Ord. No. 2021-1262, 6-14-2021]
If the fee imposed is being contested, the payment must equal
the estimated amount as calculated by the Borough prior to a CO being
issued. If payment does not match the final or the estimated fee,
a CO will not be issued. A developer may challenge nonresidential
development fees imposed pursuant to N.J.S.A. 40:55D-8.1 et seq. 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 State of New
Jersey. Appeals from a determination of the Director may be made to
the Tax Court of New Jersey in accordance with the provisions of the
State Uniform Tax 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.
[Ord. No. 2021-1262, 6-14-2021]
The Borough of Manville shall complete and return to the State
of New Jersey, Office Local Planning Services, N.J. Department of
Community Affairs, an annual monitoring report summarizing the collection
of development fees from nonresidential developers. All monitoring
reports shall be completed on forms designed by COAH.
[Ord. No. 2021-1262, 6-14-2021]
Any prior ordinance of the Borough of Manville, or any article,
section, paragraph, subsection, clause, or other provision of any
such prior ordinance, which is inconsistent with the provisions of
this article is hereby repealed to the extent of such inconsistency.
[Ord. No. 2021-1262, 6-14-2021]
In the event that any provision of this article, or the application
thereof to any person or circumstance, is declared invalid by any
court of competent jurisdiction, or is found to be inconsistent with
or precluded by any overriding state statute or regulation, such adjudication
shall apply only to the section, paragraph, subsection, clause, or
provision so adjudged, and the remainder of this article shall be
deemed valid and effective; such holding shall not affect any other
provision or application of this article which may be given effect,
and, to realize this intent, the provisions and applications of this
article are declared to be severable.
[Ord. No. 2021-1262, 6-14-2021]
Should any provisions of this article be inconsistent with the
provisions of any other prior ordinances, or shall be inconsistent
with any article, section, paragraph, subsection, clause, or other
provision of any prior ordinances, the inconsistent provisions of
such other prior ordinances are hereby repealed, but only to the extent
of such inconsistencies.
[Ord. No. 2021-1262, 6-14-2021]
This article shall take effect upon its passage and publication
and filing with the Somerset County Planning Board and as otherwise
provided for by law.
