[Added 6-9-2021 by Ord. No. 13-2021[1]]
[1]
Editor’s Note: This ordinance also superseded former Art. XV, Development Fees, added 5-16-2011 by Ord. No. 22-2011.
A. 
In Holmdel Builders 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 (the Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to adoption of rules by the Council on Affordable Housing (COAH).
B. 
Livingston Township initially adopted an affordable housing development fee ordinance on May 17, 1997 (Ordinance No. 17-97), which was approved by the Superior Court by order entered on September 22, 1997, as reconfirmed by a final judgment of compliance entered by the Court on February 7, 2000. The development fee ordinance subsequently was codified as Article XV of Chapter 170 of the Township Code.
C. 
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential 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 COAH or a court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.
D. 
Article XV was readopted by Ordinance No. 22-2011 on May 16, 2011, to provide updated standards for the collection, maintenance and expenditure of development fees pursuant to COAH's prior regulations and in accordance P.L. 2008, c. 46, Sections 8 and 32 through 38.[1]
[1]
Editor's Note: See N.J.S.A. 52:27D-329.2 and N.J.S.A. 40:55D-8.1 through 40:55D-8.7, respectively.
E. 
Current Article XV has been adopted in connection with proceedings in a declaratory judgment action for approval of Livingston's affordable housing plan to reconfirm the standards for the collection, maintenance and expenditure of development fees pursuant to COAH's prior regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32 through 38.[2]
[2]
Editor's Note: See N.J.S.A. 52:27D-329.2 and N.J.S.A. 40:55D-8.1 through 40:55D-8.7, respectively.
Fees collected pursuant to this Article XV shall be used for the sole purpose of providing authorized lower-income housing assistance. This Article XV shall continue to be interpreted consistent with COAH's prior rules on development fees, as codified in N.J.A.C. 5:97-8 and applicable judicial principles.
The following terms, as used in this Article XV, 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 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 considerations in the state.
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 (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.
A. 
Imposed fees.
(1) 
Within the Township of Livingston, 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 additional development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.
Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1.5% of the equalized assessed value on the first two units; and the specified higher percentage up to 6% of the equalized assessed value for the two additional units, provided zoning on the site has not changed during the two-year period preceding the filing of such a variance application.
(3) 
Eligible exactions, ineligible exactions and exemptions for residential development.
(a) 
Affordable housing developments, developments where the developer is providing for the construction of affordable units elsewhere in the Township, and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.
(b) 
Developments that have received preliminary or final site plan approval prior to the adoption of the initial development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval requirement 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.
(c) 
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.
(d) 
The expansion or improvement of an existing residential structure shall be exempt from paying a development fee.
(e) 
Residential development within the Livingston Center Redevelopment Area pursuant to a redevelopment agreement with the Township of Livingston shall be exempt from paying a redevelopment fee.
A. 
Imposed fees.
(1) 
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 based on the difference between the equalized assessed value of the preexisting land and improvements and the equalized assessed value of the newly improved structure and land 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.
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 payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in Form N-RDF, State of New Jersey Nonresidential Development Certification/Exemption form. Any exemption claimed by a developer shall be substantiated by the 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 as the basis for the exemption no longer applies and shall make payment of the nonresidential development fee within three years after that event or after the issuance of the final certificate of occupancy for 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 termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by Township of Livingston 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 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 Nonresidential Development Certification/Exemption, to be completed as per the instructions provided. The construction official shall verify the information submitted by the nonresidential developer as per the instructions provided in 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 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 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 issuance of a final certificate of occupancy shall notify the Tax 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 Tax 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 Township of Livingston 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. 
Fifty percent of the estimated 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 issuance and that determined at issuance of a 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 will be placed in an interest-bearing escrow account by the Township of Livingston. 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 Township of Livingston. 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 Affordable 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;
(5) 
Recapture funds;
(6) 
Proceeds from the sale of affordable units; and
(7) 
Any other funds collected in connection with the Township of Livingston's affordable housing program.
C. 
The Township of Livingston previously provided COAH with written authorization, in the form of a three-party escrow agreement between the Township, the bank and COAH to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).
D. 
All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities in accordance with § 170-136.
A. 
The expenditure of all funds shall conform to a spending plan approved by COAH, other authorized state administrative agency, the Superior Court of New Jersey or other court of competent jurisdiction. Funds deposited in the housing trust fund may be used for any activity approved by COAH, other authorized state administrative agency, the Superior Court of New Jersey or other court of competent jurisdiction to address the Township of Livingston'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, 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. 5:97-8.7 through 5:97-8.9 and specified in the approved spending plan.
B. 
Funds shall not be expended to reimburse the Township of Livingston 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 Housing Element and 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 Township of Livingston 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. 5:96-18.
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 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 Affordable Housing Trust Fund.
The Township of Livingston will 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 Township of Livingston's affordable housing program, as well as to the expenditure of revenues and implementation of the plan approved by the Court. All monitoring reports will be completed on forms designed by COAH.
A. 
The ability of Township of Livingston to impose, collect and expend development fees shall expire with its judgment of compliance from the Superior Court in consolidated litigation entitled "Joseph Kushner Hebrew Academy, Inc. and TMB Partners, LLC v. Township of Livingston, et al." (Docket No. ESX-L-9126-07), unless the Township of Livingston has filed another adopted Housing Element and Fair Share Plan with the Court, has petitioned for substantive certification and/or has received further court approval of the development fee ordinance. If the Township of Livingston fails to renew its ability to impose and collect development fees prior to the expiration of the 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 Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Township of Livingston shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of the judgment of compliance, nor shall the Township of Livingston retroactively impose a development fee on such a development. The Township of Livingston shall not expend development fees after the expiration of the judgment of compliance unless authorized by the Court or COAH.