Article VII Fees, Guarantees, Inspections and Off-Tract Improvements

The application charge is a flat fee to cover administrative expenses. The escrow account is established to cover the cost of professional services including but not limited to engineering, planning, legal, traffic and other expenses associated with the review of the submitted materials. The Borough shall make all of the payments to professionals for services rendered to the Borough for review of applications for development, review and preparation of documents, inspection of improvements or other purposes pursuant to the Municipal Land Use Law. Such payments shall be made from the applicant's deposit in the escrow account.

The payments charged to the escrow deposit shall be pursuant to vouchers from the professionals stating the hours spent, the hourly rate and the expenses incurred. The Borough Chief Financial Officer shall render a written final accounting to the developer on the uses to which the deposit was put. Thereafter, the Borough Chief Financial Officer shall, upon written request, provide copies of the vouchers to the developer. If the salary, staff support and overhead for a professional are provided by the Borough, the charge to the deposit shall not exceed 200% of the sum of the products resulting from multiplying the hourly base salary of each of the professionals by the number of hours spent by the respective professional on review of the application for development of the developer's improvements, as the case may be. For other professionals, the charge to the deposit shall be at the same rate as all other work of the same nature by the professional for the Borough.

Sums not utilized in the review process shall be returned to the applicant no sooner than 45 days after approval by the Board of the final resolution. When the escrow is depleted to 35% of the original amount required or less, the applicant shall be notified and shall, within 15 days, replenish the account to 100% of the original escrow deposit required plus pay all unpaid costs. If the escrow balance is inadequate to cover professional fees, the Board shall not continue with the application proceedings until the escrow account is replenished.

§ 145-702 Guarantees, start of construction pursuant to an approved plan, and inspections.

Whenever an amount of money in excess of $5,000 is deposited by an applicant for the services of professionals employed by the Borough to review applications for development, for inspection fees or to satisfy performance or maintenance requirements, the money, until repaid or applied to the purposes for which it is deposited, including the applicant's portion of the interest earned thereon, except as otherwise provided herein, shall continue to be the property of the applicant and shall be held in trust by the Borough. Money deposited shall be held in escrow. The Borough shall deposit it in a banking institution or saving and loan association in this state insured by an agency of the federal government, or in any other fund or depository approved for such deposits by the state, in an account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. The municipality shall notify the applicant in writing of the name and address of the institution or depository in which the deposit is made and the amount of the deposit. The municipality shall not be required to refund an amount of interest paid on a deposit that does not exceed $100 for the year. If the amount of interest exceeds $100, that entire amount shall belong to the applicant and shall be refunded to him by the municipality annually or at the time the deposit is repaid or applied to the purposes for which it was deposited, as the case may be; except that the municipality may retain for administrative expenses a sum equivalent to no more than 33 and 1/3% of that entire amount which shall be in lieu of all other administrative and custodial expenses.

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

Escrow agreement. Each owner and applicant submitting an application for development shall agree in writing to pay all reasonable costs for professional review of the application and for inspection of the improvements. An escrow agreement shall be provided by the administrative officer for this purpose. The escrow agreement shall be signed by the owner and the developer and include provisions for payment of interest, professional fees and other costs. All such 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 a certificate of occupancy issued. Unpaid escrow fees shall be a lien against the property, enforceable as any other municipal lien.

Transcription costs. If an applicant desires a court reporter, the cost for taking testimony and transcribing it and providing a copy of the transcript to the Borough shall be at the expense of the applicant.

Public improvements. For the purposes of this article, the term "public improvements" shall include streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments, water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal (excluding individual subsurface sewage disposal systems intended to serve individual lots), drainage structures, erosion control features, and sedimentation control devices, open space land improvements and equipment, and, in the case of site plans only, other on-site improvements and landscaping.

Requirements specific to subdivisions.

No final major subdivision plat shall be recorded unless either the Borough Engineer has certified to the Board that all public improvements required by the preliminary subdivision approval have been satisfactorily completed, or the developer has entered into a developer's agreement with the Borough, in a form satisfactory to the Borough Attorney and authorized by the Borough Council, requiring the installation and maintenance of the public improvements by the developer and its successors in interest, imposing such limitations, and/or staging of, the development of the subdivision as necessary to ensure orderly construction of the public improvements, and assuring the installation of the public improvements on or before an agreed date by the filing of a performance guarantee in accordance with § 145-702D below.

No construction permit shall be issued for any building within the proposed lots until the developer has completed the following public improvements in accordance with the approved subdivision plans and construction plans required by § 145-702E(4) below:

All required utility installations and their appurtenances, including water mains, drainage and detention facilities, culverts, storm sewers, sanitary sewers or dry sewers and public improvements of open space.

All required grading and the "macadam base course" surfacing of all streets.

Construction of all required curbs.

No certificate of occupancy shall be issued for any dwelling within the proposed lots until the driveway and apron, sidewalk, trees and grass for that particular dwelling have been installed and/or planted as approved by the Borough Engineer. Upon recommendation of the Borough Engineer to the Construction Official, a temporary certificate of occupancy not to exceed six months in duration may be issued if seasonal conditions would make planting unreasonable.

Such public improvements shall be 100% completed and subject to acceptance by the Borough within two years from the date of final approval, or any extension thereof, or prior to the time a request is made for the last certificate of occupancy for a lot in the subdivision or stage or section thereof, whichever shall occur first.

It is the intention of the Borough Council that the foregoing requirements provide to each owner in the subdivision a lot that is as complete as possible with respect to tract and individual lot improvements and protect the interests of the general public and the residents of the development in the completion of the development.

In the case of a subdivision with final approval by stages or sections, the requirements of this section shall be applied by stage or section to all public improvements within the stage or section and any subsequent improvements in another stage or section which are needed for occupancy of the stage or section which has received final approval.

Requirements specific to site plans. No final major site plan application (whether for an entire tract or a section thereof) shall be unconditionally approved by the Board unless either the Borough Engineer has certified to the Board that all public improvements required by the preliminary site plan approval have been satisfactorily completed, or the developer has entered into a developer's agreement with the Borough, in a form satisfactory to the Borough Attorney and authorized by the Borough Council, requiring installation and maintenance of the public improvements by the developer and its successors in interest, imposing such limitations upon, and/or staging of, the development of the site as necessary to ensure orderly construction of the public improvements, and the installation of the public improvements on or before an agreed date by filing a performance guarantee in accordance with § 145-702D below.

Performance guarantee.

In accordance with the Municipal Land Use Law, an itemized cost estimate of the improvements covered by the performance guarantee shall be prepared by the applicant's or developer's engineer and received and reviewed by the Borough Engineer. The itemized cost estimate shall set forth all required public improvements as determined by the Board together with the estimated costs to the Borough of completing the improvements and shall be appended to each performance guarantee posted by the obligor, in such form as approved by the Borough Attorney. In the event that other governmental agencies or public utilities will automatically own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee shall be required by the Borough of High Bridge for such utilities or improvements. The cost of the installation of improvements for the purposes of this section shall be estimated by the applicant's or developer's engineer and reviewed and approved by the Borough Engineer based on documented construction costs for public improvements prevailing in the general area of the Borough. The developer may appeal the Borough Engineer's estimate to the Borough Council. The Borough Council shall decide the appeal within 15 days of receipt of the appeal in writing by the Municipal Clerk. After the developer posts a guarantee with the Borough based on the cost of the installation of improvements as determined by the Borough Council, he may institute legal action within one year of the posting in order to preserve the right to a judicial determination as to the fairness and reasonableness of the amount of the guarantee.

The developer shall present two copies of the performance guarantee, in an amount equal to 120% for the approved performance guarantee estimate, to the Borough Clerk for approval as to form and execution by the Borough Attorney. The itemized cost estimate prepared by the Borough Engineer shall be appended to each performance guarantee posted by the obligor.

Not less than 10% of the amount of the approved performance guarantee shall be deposited by the developer in cash or certified check with the Borough. The remaining 90% may be in cash, irrevocable letter of credit, or bond. In the event of default, the Borough may proceed against the performance guarantee following written notice to the developer.

An irrevocable letter of credit shall be acceptable if it:

Constitutes an unconditional payment of obligation of the issuer running solely to the Borough for an express initial period of time in the amount determined pursuant to § 145-702D(1);

Is issued by a banking or savings institution authorized to do and is doing business in this state;

Is for a period of at least one year; and

Permits the municipality to draw upon the letter of credit if the obligor fails to furnish another letter of credit, which complies with the provisions of this section, 30 days or more in advance of the expiration date of the letter of credit or such longer period in advance as is stated in the letter of credit.

The Borough shall issue its receipt for such deposits and shall cause the same to be deposited in the name of the Borough to be retained as security for completion of all required improvements and to be returned to the applicant on completion of all required work or, in the event of default on the part of the developer, to be used by the Borough to pay the costs of completing all required improvements.

Start of construction. Construction pursuant to a site plan or subdivision approval shall not commence until:

The developer has paid all fees required by this chapter;

The developer has received all other governmental permits and approvals required by the Board's resolution granting subdivision or site plan approval;

The developer has satisfied all conditions of approval required by the Board's resolution granting subdivision and/or site plan approval and all changes required by the Board to the developer's subdivision and/or site plans have been filed with and approved by the Borough Engineer;

The developer's construction plans have been filed with and approved by the Borough Engineer;

The developer has had a preconstruction meeting with the Borough Engineer for the purpose of forecasting and resolving problems that may arise during the course of construction; and

The developer has furnished the Borough the performance guarantee required by § 145-702D.

Inspection and tests.

All site improvements and utility installations for site plans, subdivisions, plot plans and other realty improvements shall be inspected during the time of their installation under the supervision of the Borough Engineer and/or other officials or professionals serving the Borough in order to ensure satisfactory completion. The total cost of said inspections shall be the responsibility of the developer who shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer and/or other officials or professionals serving the Borough. Prior to the start of inspections, the developer shall deposit, with the Borough Chief Financial Officer for payment of the inspection costs, a sum equal to 5% of the amount of the costs for the construction of the improvements as set forth in the itemized list prepared pursuant to § 145-702D(1) or $3,000, whichever is greater.

For those developments for which the inspection fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by the developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for the inspections, the developer shall deposit the remaining 50% of the inspection fees.

For those developments for which the inspection fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by the developer shall be 25% of the inspection fees. When the balance drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for the inspections, the developer shall make additional deposits of 25% of the inspection fees. The Borough Engineer shall not perform any inspection if insufficient funds to pay for those inspections are not on deposit.

In the event that final approval is by stages or sections of development, these provisions for payment shall be applied by stage or section of the development.

The Borough Engineer's office shall be notified at least five business days prior to the commencement of the following phases of work so that he or a qualified representative may inspect the work:

Road subgrade.

Curb and gutter forms.

Curbs and gutters.

Road paving.

Sidewalk forms.

Sidewalks.

Storm drainage pipes and other stormwater management construction.

(h)

Street name signs.

(i)

Surveyor's monuments.

(j)

Sanitary sewerage.

(k)

Detention and/or retention basins.

(l)

Underground utilities.

(m)

Seeding and planting.

(n)

Soil erosion and sediment control measures pursuant to § 145-813 of this chapter.

In no case shall any paving work be done without permission from the Borough Engineer.

Any improvement installed contrary to the plan or plat approved by the Borough shall constitute just cause to void the municipal approval.

Any improvement not installed in compliance with §§ 145-702E, 145-702F(2) and 145-702F(3) hereinabove shall constitute just cause for:

Removal of the improvement, and reinstallation of same in compliance with this chapter;

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

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

The issuance of a stop-work order by the Borough Engineer pending the resolution of any dispute.

Inspection by the Borough of the installation of improvements and utilities shall not operate to subject the Borough of High Bridge 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 his contractor, if any.

Release.

Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the Borough Council in writing, by certified mail addressed in care of the Borough Clerk, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to § 145-702D of this chapter, a list of all uncompleted or unsatisfactorily completed improvements. If such a request is made, the obligor shall send a copy of the request to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon, the Borough Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Borough Council, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.

The list prepared by the Borough Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of, and remedy for, the state of each completed improvement determined to be unsatisfactory. The report prepared by the Borough Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee.

The Borough Council, by resolution, shall either approve the improvements determined to be completed and satisfactory by the Borough Engineer, or reject any or all of these improvements upon the establishment in the resolution of cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

If the Borough Engineer fails to send or provide the list and report as requested by the obligor within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough Engineer to provide the list and report within a stated time, and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

If the Borough Council fails to approve or reject the improvements determined by the Borough Engineer to be completed and satisfactory or to reduce the performance guarantee for the completed and satisfactory improvements within 45 days from the receipt of the Borough Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the completed and satisfactory improvements and approval of a reduction in the performance guarantee for the completed and satisfactory improvements in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee. The cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

Any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit portion of the performance guarantee in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

(7)

If any portion of the required improvements is rejected, the Borough Council may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification as set forth hereinabove shall be followed.

(8)

Nothing herein shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Borough Council or the Borough Engineer.

(9)

If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough of High Bridge for the reasonable cost of the improvements not completed or corrected and the Borough may, either prior to or after receipt of the proceeds thereof, complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of N.J.S.A. 40A:11-1 et seq.

(10)

If the Board requires, as a condition of approval of an application for development, the installation of streetlighting on a dedicated public street connected to a public utility, then, upon notification in writing by the developer to the Board and to the Borough Council that the streetlighting on a dedicated public street has been installed and accepted for service by the public utility and that certificates of occupancy have been issued for at least 50% of the dwelling units or 50% of the floor area of the nonresidential uses on the dedicated public street or the portion thereof contained in the section or phase of the development having received final approval, the Borough shall, within 30 days following receipt of the notification, make appropriate arrangements with the public utility for, and assume the payment of the costs of the streetlighting on the dedicated public street on a continuing basis. Compliance by the Borough with the provisions of this section shall not be deemed to constitute acceptance of the street by the Borough.

Conditions and acceptance of improvements. To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the Borough Council shall be required upon release of any performance guarantee required pursuant to § 145-702D to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the Board, provided that all of the following conditions have been met:

Such improvements shall have been inspected and shall have received final approval by the Borough Engineer, and the Borough Engineer shall have certified in writing that the improvements are completed and that they comply with the requirements of this chapter and/or the subdivision or site plan approval.

The developer shall have filed with the Borough Council a maintenance guarantee in the amount equal to 15% of the cost of installing the improvements. The maintenance guarantee shall run for a period of two years from the date of final acceptance of the improvement(s) covered. The method of calculation used and the procedures and requirements governing such maintenance guarantee shall be identical to the method of calculation used and the procedures and requirements for the performance guarantee as set forth in § 145-702D except that the maintenance guarantee need not include cash. The requirements for a maintenance guarantee may be waived by the Borough Council if the Borough Engineer has certified that the improvements have been in continuous use for not less than two years from the date the Borough Engineer certified completion of such improvements and that during this time period the owner has maintained the improvements in a satisfactory manner.

One set of black and white "as-built" or record drawings, certified by a New Jersey-licensed land surveyor, shall be submitted to the Borough Engineer for review and approval. Upon receiving the Borough Engineer's approval, the applicant shall submit to the administrative officer three black-and-white prints, a Mylar copy and a CAD-generated file of the drawings appearing on separate layers conforming with the requirements of § 145-608B(1) of this chapter. "As-built" or record drawings shall include the following:

Drainage structures, culverts, pipes, outfalls, swales and stormwater management construction, including invert elevations.

Sanitary sewerage, including structures with invert elevations, pipes and laterals.

Water mains, valves, hydrants and service connections.

Streets in plan and profile, curb and sidewalks.

(e)

Signage.

(f)

Landscaping.

(g)

Other improvements, such as retaining walls, including elevations.

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

§ 145-703 Off-tract improvements.

Required improvements. Applicants shall be required, as a condition of approval of a subdivision, site plan, conditional use and/or variance, 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 indicated in the Borough Master Plan and necessitated or required by construction or improvements within such subdivision or development. The following criteria shall be utilized in determining the developer's proportionate pro rata monetary share for the necessary off-tract developments.

Improvements to be constructed at the 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 outside the tract and dedicate such lands to High Bridge Borough or Hunterdon County, as appropriate. Or, in lieu thereof, the Borough may require the developer to deposit with the Borough a sum of money sufficient to allow the Borough to acquire and/or improve such lands as the Mayor and Common Council may deem appropriate.

General standards for other improvements. In cases where the need for any off-tract improvements 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 benefit from the improvement, the following criteria, together with the provisions or rules and regulations of High Bridge Borough or any department thereof, may be utilized in determining the developer's proportionate share of such improvements:

Sanitary sewers. For distribution facilities, including the installation, relocation or replacement of collector, trunk and interceptor sewers and the installation, relocation or replacement of other appurtenances associated therewith, the applicant's proportionate share shall be computed as follows:

The capacity and the design of the sanitary sewer system shall be based on the Rules and Regulations for the Preparation and Submission of Plans for Sewerage Systems, NJDEP, and any applicable High Bridge Borough sewer design standards, including infiltration standards.

Developer's pro rata share:

[1]

The capacity of the existing system to serve the entire improved drainage area shall be computed. If the system is able to carry the total development drainage basin, no improvement or enlargement cost will be assigned to the developer although some charges including, but not limited to, capacity charges may be imposed. If the existing system does not have adequate capacity for the total development drainage basin, the pro-rated enlargement or improvement share shall be computed as follows:

Developer's Cost

Total Enlargement or Improvement Cost

Development g.p.d.

Total Tributary g.p.d.

[2]

If it is necessary to construct a new system in order to develop the subdivision or development, the pro-rated enlargement share to the developer shall be computed as follows:

Developer's Cost

Total Project Cost

Development Tributary g.p.d.

Total Tributary g.p.d. to New System

[3]

The plans for the improved 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 Borough Engineer.

Roadways. For street widening, alignment, channelization of intersections, construction of barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements not covered elsewhere, or 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:

The applicant's engineer shall provide the Borough Engineer with the existing and anticipated peak-hour volumes for motor vehicle traffic, which impact the off-tract areas in question.

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:

Developer's Cost

Total Cost of Roadway

Improvement and/or Extension

Additional Peak-Hour Traffic

Generated by the Development

Future Total Peak-Hour Traffic

Drainage improvements. For the stormwater and drainage improvements, including the installation, relocation or replacement of storm drains, culverts, catch basin, manholes, rip-rap 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:

The capacity and design of the drainage system to accommodate stormwater runoff 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 Borough Engineer.

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 Borough 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 Borough Engineer. The pro-rated share for the proposed improvement shall be computed as follows:

Developer's Cost

Total Enlargement or Improvement

Cost of Drainage Facilities

Development cfs

Total Tributary cfs

Escrow accounts. Where the proposed off-tract improvement is to be undertaken at a future date, funds required for the improvement shall be deposited to the credit of High Bridge Borough in a separate account until such time as 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 Borough Attorney. If the off-tract improvement is not begun within 10 years of the deposit, moneys and interest shall be returned to the applicant subject to the provisions of § 145-701B, or the letter of credit, as the case may be, shall be surrendered. Any off-tract improvement shall be considered "begun" if High Bridge Borough has taken legal steps to provide for the design and financing of such improvements.

Referral to Borough Council.

Where applications for development suggest the need for off-tract improvements, whether to be installed in conjunction with the development in question or otherwise, the Board shall forthwith forward to the Borough Council a list and description of all such improvements together with a request that the Borough Council 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 Borough Council's determination or the expiration of 90 days after the forwarding of such list and description to the Borough Council without determination having been made, whichever comes first.

The Borough Council, within 90 days after receipt of said list and description, shall determine and advise the Board concerning the procedure to be followed and suggested conditions of approval, if any, to adequately protect the Borough.

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

Implementation of off-tract improvements.

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

Where properties outside the subject tract will specifically benefit from the improvements, the Borough Council may require the applicant to escrow sufficient funds, in accordance with § 145-703D hereinabove, to secure the developer's pro rata share of the eventual cost of providing future improvements based upon the standards expressed herein.

Where properties outside the subject tract will benefit from the improvements, the Borough Council may determine that the improvement or improvements are to be installed by the Borough as a general improvement, the cost of which is to be borne as a general expense. If the Borough Council shall determine that the improvement or improvements shall be constructed or installed as a general improvement, the Borough Council may direct the Board to estimate, with the aid of the Borough Engineer or such 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 specifically benefit thereby, and the developer shall be liable to the Borough for such expense.

If the Borough Council 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 Borough Council may require that the developer shall be liable to the Borough, in addition to the amount of any special assessments against the subject property for benefits conferred by the improvement or improvements, for 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.

If the Borough Council shall determine that the improvements are to be constructed or installed by the applicant, such agreement may contain provisions, consistent with the standards in this chapter, any other rules, regulations or policies of the Borough of High Bridge, County of Hunterdon, State of New Jersey, and any departments, authorities and agencies thereof with jurisdiction therein, whereby the applicant shall be reimbursed by the Borough 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 Borough Council and the applicant with respect to special benefits provided by the improvements to other properties.

In determining the procedures to be followed in the event of the submission of a list and request from the Board, the Borough Council shall be guided by the following standards and considerations;

The local trends in regard to the probability of development within the drainage or circulation area in question and the intensity of such development.

The risk and exposure that neighboring areas are subject to in the event that the improvements to be required are delayed.

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 subregional facilities will be required in the future to serve the development tract and the general area of the municipality in which the same is located.

§ 145-704 Affordable housing development fees.

The extent to which the health, safety and welfare of the residents, both current and future, depend upon the immediate implementation of the off-tract improvement.

[Added 12-3-2009 by Ord. No. 2009-34; amended 6-28-2018 by Ord. No. 2018-025]

Purpose. This section 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.A.C. 52:27D-329.2) and the Statewide Nonresidential Development Fee Act (N.J.A.C. 40:55D-8.1 through 8.7). Fees collected pursuant to this section shall be used for the sole purpose of providing very-low-, low- and moderate-income housing in accordance with a Court-approved spending plan.

Basic requirements.

This section shall not be effective until approved by the Court.

The Borough of High Bridge shall not spend development fees until the Court has approved a plan for spending such fees (spending plan).

Definitions.

AFFORDABLE HOUSING DEVELOPMENT

The following terms, as used in this section, shall have the following meanings:

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 one-hundred-percent-affordable housing development.

COAH or the COUNCIL

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

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 Township, 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.

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 §§ 1, 5, and 6 of P.L. 1973, c.123 (N.J.A.C. 54:1-35a through N.J.A.C. 54:1-35c).

GREEN BUILDING STRATEGIES

Those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.

[1]

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

Residential development fees.

Imposition of fees.

Within the Borough of High Bridge, 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.

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.

Eligible exactions, ineligible exactions and exemptions for residential developments.

Affordable housing developments and/or developments where the developer has made a payment in lieu of on-site construction of affordable units, if permitted by ordinance or by agreement with the Borough of High Bridge, shall be exempt from the payment of development fees.

Developments that have received preliminary or final site plan approval prior to the adoption of this section shall be exempt from the payment of development fees, unless the developer seeks a substantial change in the original approval. Where site plan approval is not applicable, the issuance of a zoning permit and/or construction permit shall be synonymous with preliminary or final site plan approval for the purpose of determining the right to an exemption. In all cases, the applicable fee percentage shall be determined based upon the development fee ordinance in effect on the date that the construction permit is issued.

Improvements or additions to existing one- and two-family dwellings on individual lots shall not be required to pay a development fee, but a development fee shall be charged for any new dwelling constructed as a replacement for a previously existing dwelling on the same lot that was or will be demolished, unless the owner resided in the previous dwelling for a period of one year or more prior to obtaining a demolition permit. Where a development fee is charged for a replacement dwelling, the development fee shall be calculated on the increase in the equalized assessed value of the new structure as compared to the previous structure.

Homes replaced as a result of a natural disaster (such as a fire or flood) shall be exempt from the payment of a development fee.

Nonresidential development fees.

Imposition of fees.

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.

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.

Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the pre-existing land and 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 section results in a negative number, the nonresidential development fee shall be zero.

Eligible exactions, ineligible exactions and exemptions for nonresidential development.

The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to a development fee of 2.5%, unless otherwise exempted below.

The development fee of 2.5% shall not apply to an increase in equalized assessed value resulting from alterations, change in use within the existing footprint, reconstruction, renovations and repairs.

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.

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.

(e)

If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Borough of High Bridge as a lien against the real property of the owner.

Collection procedures.

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.

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.

The construction official responsible for the issuance of a construction permit shall notify the Borough Tax Assessor of the issuance of the first construction permit for a development which is subject to a development fee.

Within 90 days of receipt of such notification, the Borough Tax Assessor shall prepare an estimate of the equalized assessed value of the development based on the plans filed.

The construction official responsible for the issuance of a final certificate of occupancy shall notify the Borough Tax Assessor of any and all requests for the scheduling of a final inspection on a property which is subject to a development fee.

Within 10 business days of a request for the scheduling of a final inspection, the Borough 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 Borough of High Bridge 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.A.C. 40:55D-8.6).

(8)

Except as provided in Subsection E(1)(c) 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 developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by the Borough of High Bridge. 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.

A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by the Borough of High Bridge. 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.

Affordable Housing Trust Fund.

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

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

Payments in lieu of on-site construction of a fraction of an affordable unit, where permitted by ordinance or by agreement with the Borough of High Bridge;

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

Rental income from municipally operated units;

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 High Bridge's affordable housing program.

In the event of a failure by the Borough of High Bridge to comply with trust fund monitoring and reporting requirements or to submit accurate monitoring reports; or a failure to comply with the conditions of the judgment of compliance or a revocation of the judgment of compliance; or a failure to implement the approved spending plan and to expend funds within the applicable required time period as set forth in In re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J. Super. 563); or the expenditure of funds on activities not approved by the Court; or for other good cause demonstrating the unapproved use(s) of funds, the Court may authorize the State of New Jersey, Department of Community Affairs, Division of Local Government Services (LGS), to direct the manner in which the funds in the Affordable Housing Trust Fund shall be expended, provided that all such funds shall, to the extent practicable, be utilized for affordable housing programs within the Borough of High Bridge, or, if not practicable, then within the county or the housing region.

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.

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

Use of funds.

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 Borough of High Bridge'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.

Funds shall not be expended to reimburse the Borough of High Bridge for past housing activities.

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 3, in which High Bridge is located.

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.

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.

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

The Borough of High Bridge 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.

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.

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.

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.

Monitoring. The Borough of High Bridge 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 Borough), funds from the sale of units with extinguished controls, barrier free escrow funds, rental income from Borough-owned affordable housing units, repayments from affordable housing program loans, and any other funds collected in connection with High Bridge's affordable housing programs, as well as an accounting of the expenditures of revenues and implementation of the spending plan approved by the Court.

Ongoing collection of fees.

The ability for the Borough of High Bridge to impose, collect and expend development fees shall be permitted through the expiration of the repose period covered by its Judgment of Compliance and shall continue thereafter so long as the Borough of High Bridge has 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.

If the Borough of High Bridge is not pursuing authorization to impose and collect development fees after 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 § 20 of P.L. 1985, c. 222 (N.J.A.C. 52:27D-320).