Township of Bordentown, NJ Article IX Fees, Guarantees, Inspections and Off-Tract Improvements

§ 500-901 Fees.

[Amended Ord. No. 2001-09, 8-27-2001; Ord. No. 2002-02, 2-5-2002; Res. No. 2002-084-8, 3-25-2002; Ord. No. 2010-11, 7-12-2010; Ord. No. 2010-12, 7-12-2010; Ord. No. 2011-24, 11-14-2011; 6-22-2015 by Ord. No. 2015-08; 5-22-2023 by Ord. No. 2023-07; 12-4-2023 by Ord. No. 2023-14; 12-4-2023 by Ord. No. 2023-14; 6-24-2024 by Ord. No. 2024-14]

A. Every application for development shall be accompanied by a check payable to the Township of Bordentown for the application charge and, if applicable, a check made payable to the Township of Bordentown Builder's Trust Account for the escrow account, in the total amount required in accordance with the following schedule:

No.	Type of Application	Application Fee	Escrow Deposit
1.	Subdivision, minor	$200, plus $75 per lot	$2,000
2.	Subdivision, major Preliminary plan	$300	$10,000 (for 1 to 20 lots), plus $100 per lot for each additional lot over 20
3.	Subdivision, major Final plan	$500, plus $75 per lot	50% of escrow deposit calculated for preliminary plan.
4.	Site plan, minor	$500	$3,000
5.	Site plan, major Preliminary plan	$750	Nonresidential: $5,000 (0 to 4 acres) plus $750 per acre (or any fraction over 4 acres)
			Residential: $5,000(1 to 10 units) $10,000(11 to 30 units) plus $150 per unit over 30
6.	Site plan, major Final plan	$1,000	Nonresidential: Same amount as deposit for preliminary site plan application.
			Residential: 50% of original escrow deposit for preliminary site plan application
7.	Conditional use	$500	$5,000
8.	Informal review with Board; no prior plan review by professional staff	$50	$600
9.	Preapplication conference with Board professionals and/or staff	$0	$2,500
10.	Appeal to Planning Board (N.J.S.A. 40:55D-70a)	$100	$2,000
11.	Request for interpretation by the Planning Board (N.J.S.A. 40:55D-70b)	$0	$2,000
12.	Bulk variances (N.J.S.A. 40:55D-70c)	Single family: $100: per variance	Single family: $500
		All other uses: $250 per variance	All other uses: $500 per variance
13.	Use variance (N.J.S.A. 40:55D-70d) (per request)	$1,000 per use variance	$3,000 for property currently zoned primarily for nonresidential use;
			$1,500 for property currently zoned primarily for residential use
14.	Permit request or appeals under N.J.S.A. 40:55D-35 or 36	$200	$1,000 per request
15.	Appeals to the Township Committee	$200	$2,000
16.	Request for consideration of rezoning or land development ordinance amendment by the Township Committee	$500	$2,000
17.	Minor site plan alteration (only on properties with an approved site plan on file), aka administrative review that requires Board professional input	$200	$1,000
18.	Certified list of property owners	Land use applications: $0.25 per name or $10, whichever is greater. N.J.S.A. 40:55D-1 et seq.
19.	Sign permit	1 to 5: $35 each More than 5: $200 total	None
20.	Special satellite use permit	$50	$500
21.	Zoning permit	$35	None
22.	Subdivision approval certificate	$25	None
23.	Soil removal permit	$100	0 to 1.99 acres: $2,000 2 to 4.99 acres: $5,000 5 acres or greater: $10,000
24.	Copy of Zoning Map (color)	$25 (paper)	N/A
25.	Copy of street map	$15 (paper)	N/A
26.	Telecommunications towers	$100	$2,000
27.	Extension of preliminary, final or GDP approval, without substantial revisions to prior approved plans	$100	$2,000
28.	Revised plan (re-) submission with substantial revisions as determined by the administrative officer	N/A	50% of original escrow deposit
29.	Revised plan (re-) submission with minor revisions as determined by the administrative officer	N/A	25% of original escrow deposit
30.	General development plan (GDP)	$200	$10,000
31.	Request for consideration of an amendment to a redevelopment plan by the Township Committee	$500	$2,000

NOTES:
1.	Where a fee or deposit is based upon the number of lots, that number shall include the remainder lot.

B. Application fees and escrow deposits.

(1) The application charge is a flat fee to cover administrative expenses.

(2) The escrow account is established to cover the cost of professional services, including engineering, planning, legal and other expenses associated with the review of submitted materials.

(3) All billings for professional services to be charged to the applicant's escrow account shall be submitted for payment on at least a monthly basis at an hourly rate as specified in the current professional services agreement.

(4) Sums not utilized in the review process shall be returned to the applicant.

(5) It shall be the obligation of the applicant to maintain the escrow deposit at the amount specified. The administrative officer shall notify the applicant whenever an additional deposit is required. Copies of all billings charged to the escrow account shall be provided to the applicant on request.

(6) The administrative officer may waive the requirement for the additional payment if the administrative officer determines that the amount in the escrow account will be sufficient to satisfy all additional billings that are reasonably anticipated.

(7) If the applicant objects to any payments charged to the escrow account, the administrative officer shall review the objections with the applicant and the professional in an effort to resolve any questions. If the matter is not resolved, the applicant may seek recourse in accordance with the provisions of N.J.S.A. 40:55D-53.2a.

(8) If the administrative officer determines that additional sums are necessary, the applicant shall be notified of the required additional amount and shall add that sum to the escrow account within 15 days.

(9) No approvals shall be granted or permits issued where there is a deficiency in the escrow account.

C. Where one application for development includes several approval requests, the sum of the individual required fees shall be paid.

D. Each applicant shall agree to pay all reasonable costs for professional services required by the Township relating to the review of the application and for inspection of the improvements. All costs for review and inspection must be paid before any approved plat, plan or deed is signed or any construction permit is issued and all remaining costs must be paid in full before any occupancy of the premises is permitted or certificate of occupancy issued.

E. If an applicant desires a court reporter, the cost for taking testimony and transcribing it and providing a copy of the transcript to the Township shall be at the expense of the applicant who shall arrange for the reporter's attendance.

F. Whenever a special meeting of the Township Committee or the Planning Board is held for the consideration of one or more applications, all costs related to that special meeting, including administrative costs and professional fees, shall be the responsibility of the applicant or applicants whose applications are considered at the special meeting. If more than one application is considered at the special meeting, the costs shall be equally divided among the applicants.

G. Each applicant and/or developer for any approval that results in the creation of any new lot(s) shall be responsible for paying all charges incurred by the Township Engineer in amending the Township's Tax Map(s).

H. Waiver of application and escrow fees to promote accessibility by persons with disabilities. As authorized by N.J.S.A. 52:27D-126e:

(1) No person shall be charged a construction permit surcharge fee or enforcing agency fee for any construction, reconstruction, alteration or improvement designed and undertaken solely to promote accessibility by persons with disabilities to an existing public or private structure or any of the facilities contained therein.

(2) A person with a disability, or a parent or sibling of a person with a disability, shall not be required to pay a municipal fee or charge in order to secure a construction permit for any construction, reconstruction, alteration or improvement which promotes accessibility to the person's own living unit.

(3) Application and escrow fees and zoning permit fees shall be waived for construction of handicapped ramps on residential property.

§ 500-902 Guarantees and inspections.

A. Performance guarantee estimate.

(1) No final application for development (whether for an entire tract or a section thereof) shall be approved by the Board unless the owner shall have filed with the Township a performance guarantee, in the form approved by the Township Attorney and accepted by the Township Committee assuring the installation of the public improvements on or before an agreed date as hereinafter provided. The performance guarantee shall not be required for any improvements which the Township Engineer shall certify as having been completed in accordance with all applicable standards.

(2) It is the intention of the Township Committee that residents living in each new section of a development be provided with a lot and/or dwelling unit and tract area that is as complete as possible with respect to tract and individual lot and/or dwelling unit improvements. In order to accomplish this objective, and except as hereafter provided, all remaining improvements shall be completed as to each category set forth in the performance guarantee to a percentage extent equal to the percent of lots and/or dwelling units which have been conveyed in any manner.

(3) A performance guarantee estimate shall be prepared by the applicant's engineer and submitted to the Township Engineer for review and approval, setting forth all requirements for improvements, as fixed by the Board, and their estimated cost. The Township Committee shall pass a resolution either approving or adjusting this performance guarantee.

B. Approval by Township Attorney.

(1) The owner shall present two copies of the performance guarantee, in an amount equal to 120% of the approved performance guarantee estimate for approval as to form and execution by the Township Attorney.

(2) The Township Attorney shall notify the administrative officer when it is determined that the performance guarantee is properly executed. Until that notification is received no permits shall be issued for the project.

C. Bonding and cash requirements.

(1) The performance guarantee shall be made payable and deposited to Bordentown Township and shall be in the form of cash, irrevocable letter of credit or certified check or a performance bond in which the owner shall be principal, the bond to be provided by an acceptable surety company licensed to do business in the State of New Jersey. Any letter of credit or performance bond shall include a provision that the letter of credit or performance bond shall not expire and may not be revoked, rescinded or cancelled except upon 60 days written notice given to the Township. Any notice shall be valid only if given both to the Township Administrator and to the Township Attorney. The Township shall issue its receipt for the deposits and shall cause the performance guarantee to be deposited in the name of the Township to be retained as security for completion of all requirements and to be returned to the owner on completion of all required work or, in the event of default on part of the owner, to be used by the Township to pay the cost and expense of obtaining completion of all requirements.

(2) Ten percent of the amount of the approved performance guarantee shall be in the form of an irrevocable letter of credit or shall be deposited by the owner in cash with the Township. The remaining 90% may be in cash, irrevocable letter of credit or surety bond. In the event of default, the 10% fund herein mentioned shall be first applied to the completion of the requirements and the cash, letter or credit, or surety bond shall thereafter be resorted to, if necessary, for the completion of the requirements. The cash, letter of credit, or surety bond shall recite the foregoing provisions.

D. Inspection and tests.

(1) All site improvements and utility installations for both site plans and subdivisions shall be inspected during the time of their installation under the supervision of the Township Engineer to insure satisfactory completion. The cost of the inspection shall be the responsibility of the owner who shall pay to the Township Treasurer a sum equal to 4% of the amount of the estimated costs for the required improvements for payment of the inspection costs. These sums shall be deposited into an escrow account. If additional sums are deemed necessary, the owner shall be notified and shall add that additional sum to the escrow within 15 days.

(2) In no case shall any paving work be done without permission from the Township Engineer. At least two working days notice shall be given to the Township Engineer prior to any construction so that he or a qualified representative may be present at the time the work is to be done.

(3) Streets shall not be paved with a wearing course until all heavy construction is completed. Shade trees shall not be planted until all grading and earth moving is completed. The seeding of grass and the placing of surveyor's monuments shall be among the last operations.

(4) The Township Engineer's office shall be notified prior to each of the following phases of work so that the Township Engineer or a qualified representative may inspect the work:

(a) Road subgrade.

(b) Curb and gutter forms.

(c) Curbs and gutters.

(d) Road paving.

(e) Sidewalk forms.

(f) Sidewalks.

(g) Drainage pipes and other drainage construction.

(h) Street name signs.

(i) Monuments.

(j) Sanitary sewers.

(k) Detention and/or retention basins.

(l) Topsoil, seeding and planting.

(m) Underground utilities.

(5) Any improvement installed contrary to the plan or plat approved by the Township shall constitute just cause to void the municipal approval.

(6) Any improvement installed without notice for inspection pursuant to § 500-902D(4) above shall constitute just cause for:

(a) Removal of the uninspected improvement;

(b) The payment by the developer of any costs for material testing;

(c) The restoration by the developer of any improvements disturbed during any material testing; and/or

(d) The issuance of a stop-work order by the Township Engineer pending the resolution of any dispute.

(7) Inspection by the Township of the installation of improvements and utilities shall not operate to subject the Township to liability for claims, suits or liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter; it being recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the owner and the contractor, if any.

(8) Upon the completion or substantial completion of all required appurtenant utility improvements, and the connection of them to the public system, the obligor may notify the Township Committee, in writing, by certified mail in care of the Township Clerk, of the completion or substantial completion of the improvements and shall simultaneously send a certified copy thereof to the Township Engineer. Within 10 working days of receipt of the notice, the Township Engineer shall inspect all the improvements as to which the notice has been given and file a detailed report, in writing, with the Township Committee, indicating either approval, partial approval or rejection of the improvements with a statement of the reasons for any rejection. The costs of the improvements as approved or rejected shall be set forth.

(9) Whenever a developer requests acceptance, in whole or in part, of certain improvements by the Township and the residents of the subject property are represented by a homeowners' association, a copy of the request and of the Township Engineer's report shall be mailed to the homeowners' association 10 days prior to any action by the Township to accept or reject the improvements.

E. Release. The Township Committee shall approve, partially approve or reject the improvements, on the basis of the report from the Township Engineer, and shall notify the obligor, in writing, by certified mail, of the Engineer's report and the action of the Township Committee, not later than 65 days after the receipt of the written notice of the obligor of the completion or substantial completion of the improvements. Failure of the Township Committee to send or provide the notification to the obligor within the 65 days shall be deemed to constitute approval of the improvements and the obligor and the surety, if any, shall be released from all liability pursuant to the performance guarantee for the improvements.

(1) Where partial approval is granted, the obligor shall be released from all liability pursuant to the performance guarantee for the improvements, except for that portion adequately sufficient to secure provision of the improvements not yet approved; provided that 30% of the performance guarantee posted may be retained to ensure the completion of all improvements and that the 30% may be applied against all improvements, regardless of when completed.

(2) If any portion of the required improvements is rejected, the obligor shall complete the improvements and, upon completion, shall notify the Township Committee as specified in § 500-902D(8) of this chapter and the same procedures shall be followed as in the first instance.

F. Conditions and acceptance of improvements. The approval of any application for development by the Township shall in no way be construed as acceptance of any street or drainage system, or any other improvement, nor shall the approval obligate the Township in any way to exercise jurisdiction over the street or drainage system or other improvement.

(1) No improvement shall be accepted by the Township Committee unless and until all of the following conditions have been met:

(a) The Township Engineer shall have certified in writing that the improvements are completed and that they comply with the requirements of this chapter;

(b) The final application for development shall have been approved by the Board;

(c) The owner shall have filed with the Township Committee a maintenance guarantee in an amount equal to and not more than 15% of the cost of installing the improvements.

(2) The maintenance guarantee shall run for a period of two years. The procedures and requirements governing the maintenance guarantee shall be identical with the procedures and requirements for a performance guarantee set forth in this chapter. The requirements for a maintenance guarantee may be waived by the Township Committee only if the Township Engineer has certified that the improvements have been in continuous use for not less than two years from the date the Township Engineer certified completion of the improvements and that during this period the owner has maintained the improvements in a satisfactory manner; and,

(3) An as-built plan and profiles of all utilities and roads (three black-and-white prints, plus a mylar copy to be sent to the Township Engineer), with certification signed and sealed by a New Jersey licensed professional engineer or New Jersey licensed land surveyor as to the actual construction as approved by the Township Engineer, shall be provided. When stormwater management basins or storage areas are involved, as-built drawings shall be accompanied by a capacity and discharge certificate, signed and sealed by a New Jersey licensed professional engineer. Certifications shall verify compliance with approved designs prior to releasing the performance guarantee.

[Ord. No. 2008-5, 3-24-2008]

(4) A copy of the request to the Township Committee for the acceptance, in whole or in part, of improvements and of the Township Engineer's report thereon shall be mailed to the homeowner's association consisting of the residents of the subject development at least 10 days prior to any consideration of the request by the Township Committee. Proof of mailing shall be filed with the Township Clerk.

(5) The owner shall employ a video inspection service to obtain closed-circuit color television examination of the interior of each and every stormwater pipe system to inspect for potential defects prior to releasing the performance guarantees. The owner should provide at least two copies of color videotape record for the examination to the Township Engineer. The video inspection service provider and the format of the tape shall be approved by the Township Engineer. All costs associated with video inspections shall be the owner/applicant's responsibility.

[Ord. No. 2008-5, 3-24-2008]

(6) The owners shall provide testing for any street or residential parking area(s). The owner shall employ the services of a testing laboratory to obtain cores of the pavement in accordance with New Jersey Department of Transportation Specifications for Road and Bridge Construction, current edition. Cores should be tested for thickness, composition and density of the pavement material. The owner shall provide a certified report of the results to the Township Engineer for acceptance. The testing laboratory employed, the number and location of the cores and results shall be approved by the Township Engineer. All costs associated with testing shall be the owner/applicant's responsibility.

[Ord. No. 2008-5, 3-24-2008]

(7) The owner shall provide concrete test results for all curb, sidewalk and driveway sampling taken during construction per § 500-516. Results shall be in the form of a report from the certified testing lab and shall indicate the locations from which the samples were taken, the dates when the samples were taken and the sample results. The testing laboratory employed and test results shall be approved by the Township Engineer. All costs associated with testing shall be the owner/applicant's responsibility.

[Ord. No. 2008-5, 3-24-2008]

G. Extension of time. The time allowed for installation of the improvements for which the performance guaranty has been provided may, but need not, be extended by the Township Committee by resolution, provided that the current cost of installation of the improvements shall first be redetermined by the Township Engineer and if the current cost is found to be greater than the cost as originally determined, the applicant shall be required to increase the amount of its performance guaranty to an amount equal to 120% of the cost of installation as redetermined, as a condition of any extension. In the event that the redetermined cost shall be less than the cost as originally determined, and in further event that the applicant's performance guaranty exceeds 120% of the redetermined costs, the applicant shall be entitled to a reduction of its performance guaranty to an amount equal to 120% of the redetermined costs.

H. Scope of performance and maintenance bonds/guarantees.

[Ord. No. 2018-31, 11-19-2018]

(1) All bonds and/or guarantees required under § 500-902 shall be required to cover the following improvements, to the fullest extent permitted by N.J.S.A. 40:55D-53, as amended by P.L. 2017, c.312:

(a) The developer shall furnish a performance guarantee in favor of the Township in an amount not to exceed 120% of the costs of installation of all improvements to be dedicated to the Township and/or any other public entity, as determined by the Township Engineer.

(b) The developer's performance guarantee shall include any privately owned and/or on-site perimeter buffer landscaping.

(c) If a temporary certificate of occupancy is sought by the developer for a development, unit lot, building, or phase of the development project, the developer shall be required to furnish a separate guarantee in favor of the Township, in an amount equal to 120% of the cost of remaining improvements to be completed under the temporary certificate of occupancy, not covered by an existing performance guarantee.

(d) The developer shall be required to furnish a safety and stabilization guarantee, either as a separate guarantee or as a line item of a performance guarantee, at the developer's option. The scope, amount, and form of this guarantee shall be governed by N.J.S.A. 40:55D-53, as amended by P.L. 2017, c.312.

(e) Prior to the release of performance guarantees required pursuant to Subsections H(1)(a) and (b), the developer shall be required to post a two-year maintenance guarantee not to exceed 15% of the cost of the installation of the improvements being released.

(f) Upon inspection and issuance of final approval by the Township Engineer, the developer shall be required to post a two-year maintenance guarantee in an amount not to exceed 15% of the cost of installation for the following private, on-site improvements: stormwater management basins, inflow and water quality structures within the basins, and outflow pipes and structures of the stormwater management system, if any.

(g) All methods of inspection, calculation, and release or reduction of any bond and/or guarantee with respect to bonded improvements required in this subsection shall be undertaken in accordance with the terms of N.J.S.A. 40:55D-53, as amended by P.L. 2017, c.312. All other improvements for which a bond and/or guarantee is not required shall otherwise be governed by the Township Code.

§ 500-903 Off-tract improvements.

A. Required improvements. Applicants shall be required, as a condition for approval of a subdivision, site plan or conditional use, to pay their pro rata share of the cost of providing reasonable and necessary street improvements and/or water, sewerage and drainage facility improvements, and any necessary easements therefor, located outside the property limits of the subject premises, but necessitated or required by construction or improvements within the subdivision or development. The following criteria shall be utilized in determining the developer's proportionate pro rata monetary share for the necessary off-tract improvements.

B. Improvements to be constructed at the sole expense of the developer. In cases where the need for an off-tract improvement is created by the proposed subdivision or development and where no other property owners receive a special benefit thereby (as opposed to a mere incidental benefit), the applicant may be required, as a condition of approval and at the applicant's sole expense, to acquire and/or improve lands out side the tract and dedicate those lands to Bordentown Township or Burlington County or, in lieu thereof, require the subdivider or developer to deposit with the Township a sum of money sufficient to allow the Township to acquire and/or improve the lands on conditions it may deem appropriate under the circumstances.

C. General standards for other improvements. In cases where the need for any off-tract improvement to be implemented now or in the future is necessitated by the proposed development application, and where it is determined that properties outside the development will also be benefited by the improvement, the following criteria, together with the provisions or rules and regulations of Bordentown Township or any department thereof, may be utilized in determining the developer's proportionate share of the improvements:

(1) Water supply.

(a) All necessary improvements and costs to the water supply and distribution system are to be determined by the Planning Board based on the standards set forth in § 500-518 and the recommendations of the Township Engineer and after consideration of the standards established by the utility providing water service to the site.

(b) The plans for the improvement system or the extended system shall be prepared by the developer's engineer. All work shall be calculated by the developer and approved by the utility providing water service to the site.

(2) Sanitary sewers.

(a) All necessary improvements and costs to the sanitary sewer system are to be determined by the Planning Board based on the recommendations of the Township Engineer and after consideration of the standards established by the utility providing sewerage service to the site.

(b) The plans for the improvement system or the extended system shall be prepared by the developer's engineer. All work shall be calculated by the developer and approved by the utility providing sewerage service to the site.

(3) Roadways. For street widening, alignment, channelization of intersections, construction of barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements not covered by other regulations, the construction or reconstruction of new or existing streets and other associated streets or traffic improvements, the applicant's proportionate cost shall be determined as follows:

(a) The applicant shall provide the Board with the existing and anticipated peak-hour volumes which impact the off-tract areas in question, the volumes shall analyze pedestrian, bicycle and motor vehicle traffic, together with all other information requested by the Board or by the consultants advising the Board.

(b) The applicant shall furnish a plan for the proposed off tract improvements, which shall include the estimated peak-hour traffic generated by the proposed development. The ratio of the peak-hour traffic generated by the proposed development to the future peak-hour traffic shall form the basis of the proportionate share. The pro-rated share shall be computed as follows:

Total Cost of Roadway Improvement and/or Extension	=	Future Peak-Hour Traffic
Developer's Cost		Future Peak-Hour Traffic Generated by the Development

(c) The Board shall establish the cost of the anticipated improvements and the fair-share allocation of the improvements to be paid by the applicant after consideration of the traffic plan submitted by the applicant and any traffic plan or comments submitted by the consultants advising the Board.

(d) The minimum percentage allocation shall be 2.5% of the cost of the anticipated improvements as established by the Board.

(e) The allocation policy shall be applicable to any development which proposes:

[1] Fifty or more residential units; or

[2] Is determined to have an impact of at least 0.5% based on the traffic study accepted by the Board.

(f) The allocation policy shall not apply to developments with fewer residential units than, or having a smaller input than, these standards and no contribution shall be required of any such development.

(4) Drainage improvements. For the stormwater and drainage improvements, including the installation, relocation or replacement of storm drains, culverts, catch basins, manholes, riprap or improved drainage ditches and appurtenances thereto and the relocation or replacement of other storm drainage facilities or appurtenances associated therewith, the applicant's proportionate share shall be determined as follows:

(a) The capacity and design of the drainage system to accommodate stormwater run-off shall be based on a method described in Urban Hydrology for Small Watersheds, Technical Release 55, Soil Conservation Service USDA, January 1975, as amended, and shall be computed by the developer's engineer and approved by the Township Engineer.

(b) The capacity of the enlarged, extended or improved system required for the subdivision or development and areas outside of the subdivision or development shall be computed by the developer's engineer and be subject to the approval of the Township Engineer. The plans for the improved system shall be prepared by the developer's engineer and the estimated cost of the enlarged system shall be calculated by the Township Engineer. The pro rated share for the proposed improvement shall be computed as follows:

Total Enlargement or Improvement Cost of Drainage Facilities	=	Total Tributary cfs
Developer's Cost		Development cfs

D. Escrow accounts. Where the off-tract improvement is to be undertaken at a future date, funds required for the improvement shall be deposited to the credit of the Township in a separate account until the improvement is constructed. In lieu of a cash escrow account, developers may present irrevocable letters of credit for the term required, in a form acceptable to the Township Attorney. If the off-tract improvement is not begun within 10 years of the deposit, all monies and interest shall be returned to the applicant or the letter of credit surrendered. An off-tract improvement shall be considered begun if the Township has taken legal steps to provide for the design and financing of the improvements.

E. Referral to Township Committee.

(1) Where applications for development suggest the need for off tract improvements, whether to be installed in conjunction with development in question or otherwise, the Board shall forthwith forward to the Township Committee a list and description of all the improvements together with a request that the Township Committee determine and advise the Board of the procedure to be followed in construction or installation thereof, including timing. The Board shall defer final action upon the subdivision or site plan until receipt of the Township Committee's determination or the expiration of 90 days after the forwarding of the list and description to the Township Committee without determination having been made, whichever comes sooner.

(2) The Township Committee, within 90 days after receipt of the list and description, shall determine and advise the Board concerning the procedure to be followed and advise the Board with regard to suggested conditions of approval, if any, to adequately protect the municipality.

(3) In the event that the Board is required by law to act upon the application prior to receipt of the Township Committee's determination as to construction of off-tract, improvements, it shall request the applicant to consent to an extension of time within which to act, of sufficient duration to enable the Township Committee to make the determination. In the event that the applicant is unwilling to consent to the requested extension of time, the Board shall, in its discretion, either determine the procedure to be followed in constructing the improvements, or shall condition its approval upon the subsequent determination of the Township Committee.

F. Implementation of off-tract improvements.

(1) In all cases, developers shall be required to enter into an agreement or agreements with Bordentown Township in regard to off-tract improvements, in accordance with this chapter and any other ordinances, policies, rules and regulations of the Township of Bordentown, Burlington County and the State of New Jersey and any departments, authorities or agencies thereof.

(2) Where properties outside the subject tract will be benefited by the improvements, the Township Committee may require the applicant to escrow sufficient funds, in accordance with § 500-903, to secure the developer's pro rata share of the eventual cost of providing future structural improvements based upon the standards expressed herein.

(3) Where properties outside the subject tract will benefit by the improvements, the Township Committee may determine that the improvement or improvements are to be installed by the municipality as a general improvement, the cost of which is to be borne as a general expense. If the Township Committee shall determine that the improvement or improvements shall be constructed or installed as a general improvement, the Township Committee may direct the Planning Board to estimate, with the aid of the Township Engineer or any other persons who have pertinent information or expertise, the amount, if any, by which the total cost thereof will exceed the total amount by which all properties, including the subject tract, will be specifically benefited thereby, and the subdivider or developer shall be liable to the municipality for the expense.

(4) If the Township Committee shall determine that the improvement or improvements shall be constructed or installed as a local improvement, all or a part of the cost of which is to be assessed against properties benefited thereby in proportion to the benefits conferred by the improvements in accordance with Chapter 56 of Title 40 of the Statutes of the State of New Jersey, the developer may be required to sign an agreement acknowledging and agreeing to this procedure and, in addition, the Township Committee may require that the developer shall be liable to the municipality, in addition to the amount of any special assessments against the subject property for benefits conferred by the improvement or improvements, the difference between the total cost actually incurred and the total amount by which all properties, including the subject tract, are specially benefited by the improvement as may be determined by the Board of Improvement Assessors.

(5) If the Township Committee shall determine that the improvements are to be constructed or installed by the applicant, the agreement may contain provisions, consistent with the standards in this chapter and any other rules, regulations or policies of the Township of Bordentown, County of Burlington and the State of New Jersey and any departments, authorities or agencies thereof with jurisdiction therein, whereby the applicant shall be reimbursed by the municipality or otherwise, as a result of any participation fees, connection charges, charges paid in regard to developer's agreements with other applicants and the like, all in accordance with an agreement between the Township Committee and the applicant.

(6) In determining the procedures to be followed in the event of the submission of a list and request from the Planning Board, as provided in § 500-903E(1), the Township Committee shall be guided by the following considerations:

(a) The local trends in regard to the probability of development within the drainage or circulation area in question and the intensity of the development;

(b) The risk and exposure that neighboring areas are subject to in the event that the improvements to be required are delayed;

(c) The extent to which temporary measures may sufficiently alleviate the condition or conditions requiring the off tract improvement and the likelihood that larger, regional or sub-regional facilities will be required in the future to serve the development tract and the general area of the municipality in which the development is located; and

(d) The extent to which the health, safety and welfare of the residents, current and future, depend on the prompt implementation of the off-tract improvement.

§ 500-904 Maintenance of improvements.

A. Developer's responsibility prior to acceptance. Until Township Committee shall accept a dedicated right-of-way and/or dedicated street improvements, which acceptance shall be by formal action as provided by ordinance and general law, the developer responsible for dedicating the right-of-way and/or constructing the improvements shall be and at all times remain solely responsible for the maintenance of the right-of-way and/or improvements, at the developer's sole cost and expense. In the case of control and removal of snow and ice, the developer shall be expected to perform the same maintenance functions at the same level of performance and on the same schedule as the Township maintains as to accepted streets and roads.

B. Failure to maintain; violation; penalties and remedies. It shall be a violation of this chapter for a developer having responsibility for maintenance of a dedicated right-of-way and/or dedicated street improvements to fail to do so within a reasonable time after receipt of notice from the Zoning Officer that maintenance is required. Penalties and remedies are set forth in § 500-1005.

§ 500-905 Development fees.

[Added 8-12-2019 by Ord. No. 2019-14]

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 Nonresidential 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 chapter 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 Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected pursuant to this chapter shall be used for the sole purpose of providing low- and moderate-income housing in accordance with a court-approved spending plan.

B. Basic requirements.

(1) This section shall not be effective until approved by the court.

(2) The Township of Bordentown shall not spend development fees until the court has approved a plan for spending such fees (spending plan).

C. Definitions. The following terms, as used in this chapter, 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 housing development.

COAH or THE COUNCIL

The New Jersey Council on Affordable Housing established under the Fair Housing Act.[1]

CONSTRUCTION OFFICIAL

The construction office or his/her designee.

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 authorized by Holmdel Builder's Association v. Holmdel Borough, 121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 et seq., and regulated by applicable COAH Rules.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

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 N.J.S.A. 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.

TOWNSHIP

The Township of Bordentown.

[1] Editor's Note: See N.J.S.A. 52:27D-301 et seq.

D. Residential development fees.

(1) Imposition of fees.

(a) Within the Township of Bordentown, 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.

(b) 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.

(c) 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.

(2) Eligible exactions, ineligible exactions and exemptions for residential developments.

(a) 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.

(b) 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.

(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) 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.

(e) 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.

(f) With the exception of the construction of an accessory, additions, alterations or improvements made to existing structures resulting in an increase in the equalized assessed value totaling less than $100,000 shall be exempt if:

[1] The addition(s) increases the square footage of an existing structure by less than 50%; or

[2] The improvements involve alterations to, or the rebuilding and/or replacement of, less than 50% of the square footage of an existing structure.

[3] For purposes of determining eligibility for exemption from the imposition of development fees, all additions, improvements, alterations and any replacement or rebuilding of an existing structure shall be aggregated in determining the total increase in equalized assessed value.

(g) Any development or improvement to structures of owner-occupied property in which there is located an affordable accessory residence. This exemption shall only apply to development or improvements to the property during the period of affordability controls.

(h) The construction of a new accessory building or other structure on the same lot as the principal building shall be exempt from the imposition of development fees if the assessed value of the structure is determined to be less than $100,000.

E. Nonresidential development fees.

(1) Imposition of fees.

(a) 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.

(b) 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.

(c) 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 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 subsection results in a negative number, the nonresidential development fee shall be zero.

(d) 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.

(2) Eligible exactions, ineligible exactions and exemptions for nonresidential development.

(a) 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.

(b) Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption." Any exemption claimed by a developer shall be substantiated by that developer.

(c) A developer of a nonresidential development exempted from the nonresidential development fee pursuant to the Statewide Nonresidential 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.

(d) 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 Bordentown as a lien against the real property of the owner.

(e) Pursuant to P.L. 2009, c. 90[2] and P.L. 2011, c. 122,[3] 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.

[2] Editor's Note: See N.J.S.A. 52:27D-489a et seq.

[3] Editor's Note: See N.J.S.A. 40:55D-8.6.

F. Collection procedures.

(1) 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.

(2) 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 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) Should the Township of Bordentown 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).

(8) 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.

(9) Appeal of development fees.

(a) 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 Township of Bordentown. 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.

(b) 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 Bordentown. 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.

G. Affordable Housing Trust Fund.

(1) There is hereby created a separate, interest-bearing Affordable Housing Trust Fund to be maintained by the Chief Financial Officer of the Township of Bordentown for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.

(2) The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

(a) 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 Bordentown;

(b) Funds contributed by developers to make 10% of the adaptable entrances in a townhouse or other multistory attached dwelling unit development accessible;

(c) Rental income from municipally operated units;

(d) Repayments from affordable housing program loans;

(e) Recapture funds;

(f) Proceeds from the sale of affordable units; and

(g) Any other funds collected in connection with Bordentown Township's affordable housing program.

(3) Remedies.

(a) In the event of a failure by the Township of Bordentown 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 Bordentown or, if not practicable, then within the county or the housing region.

(b) 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.

(4) Interest accrued in the Affordable Housing Trust Fund shall only be used to fund eligible affordable housing activities approved by the court.

H. Use of funds.

(1) 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 Bordentown'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.

(2) Funds shall not be expended to reimburse the Township of Bordentown for past housing activities.

(3) 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 5, in which Bordentown Township is located.

(a) 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.

(b) 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.

(c) Payments in lieu of constructing affordable housing units on site, if permitted by ordinance or by agreement with the Township of Bordentown, and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.

(4) The Township of Bordentown 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.

(5) 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.

(a) 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.

(b) 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.

I. Monitoring. The Township of Bordentown 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 Bordentown 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.

J. Ongoing collection of fees.

(1) The ability for the Township of Bordentown 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 Bordentown 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 entity that will be reviewing and approving the Housing Element and Fair Share Plan.

(2) If the Township of Bordentown 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).

(3) The Township of Bordentown 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 Bordentown retroactively impose a development fee on such a development. The Township of Bordentown also shall not expend any of its collected development fees after the expiration of its judgment of compliance.