[Amended 10-17-2017 by Ord. No. 2017-29]
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 (the Act), N.J.S.A.
52:27D-301 et seq., and the State Constitution, subject to the Council
on Affordable Housing's (COAH's) adoption of rules; and
(2) Pursuant to P.L. 2008, c. 46, § 8 (N.J.S.A. 52:27D-329.2),
and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1
through 40:55D-8.7), COAH is authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that are under the jurisdiction of
the court of competent jurisdiction and have a court-approved spending
plan may retain fees collected from nonresidential development; and
(3) This section establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance P.L. 2008, c. 46, Sections 8 and 32 to 38. Fees
collected pursuant to this section shall be used for the sole purpose
of providing low- and moderate-income housing. This section shall
be interpreted within the framework of COAH's rules on development
fees, codified at N.J.A.C. 5:97-8.
B. Basic requirements.
(1) This section shall not be effective until approved by the court pursuant
to N.J.A.C. 5:96-5.1.
(2) Robbinsville Township shall not spend development fees until the
court has approved a plan for spending such fees in conformance with
N.J.A.C. 5:97-8.10 and 5:96-5.3.
C. Definitions. The following terms, as used in this section, 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 one-hundred-percent affordable
development.
COAH or THE COUNCIL
The New Jersey Council on Affordable Housing established
under the Act which had primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
DEVELOPER
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
EQUALIZED ASSESSED VALUE
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
GREEN BUILDING STRATEGIES
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
D. Residential development fees.
(1) Imposed fees.
(a)
Within all residential districts, residential developers, except
for developers of the types of development specifically exempted below,
shall pay a fee of 1.5% of the equalized assessed value for residential
development provided no increased density is permitted.
(b)
When an increase in residential density pursuant to N.J.S.A.
40:55D-70d(5) (known as a "d" variance) has been permitted, developers
are required to pay a development fee of 6% of the equalized assessed
value for each additional unit that may be realized. However, if the
zoning on a site has changed during the two-year period preceding
the filing of such a variance application, the base density for the
purposes of calculating the bonus development fee shall be the highest
density permitted by right during the two-year period preceding the
filing of the variance application.
(c)
Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal 1.5%
of the equalized assessed value on the first two units; and the specified
higher percentage up to 6% of the equalized assessed value for the
two additional units, provided zoning on the site has not changed
during the two-year period preceding the filing of such a variance
application.
(2) Eligible exactions, ineligible exactions and exemptions for residential
development.
(a)
Affordable housing developments 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)
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.
(d)
Developers of residential structures demolished and replaced
by the same owner as the result of a natural disaster such as fire
and flooding and green buildings shall be exempt from paying a development
fee.
(e)
Developments by the Township and Board of Education are exempt
from the fee. The sanctuary of a house of worship is exempt from the
fee but any ancillary use such as a day-care center or community center/auditorium
that triggers an affordable housing obligation is not exempt.
E. Nonresidential development fees.
(1) Imposed fees.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of development specifically exempted,
shall pay a fee equal to 2.5% of the equalized assessed value of the
land and improvements, for all new nonresidential construction on
an unimproved lot or lots.
(b)
Nonresidential developers, except for developers of the types
of development specifically exempted, shall pay a fee equal to 2.5%
of the increase in equalized assessed value resulting from any additions
or alterations to existing structures to be used for nonresidential
purposes.
[Amended 12-20-2019 by Ord. No. 2019-50]
(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 improvement and the equalized assessed
value of the newly improved structure, i.e., land and improvement,
at the time final certificate of occupancy is issued. If the calculation
required under this section results in a negative number, the nonresidential
development fee shall be zero.
(2) Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(a)
The nonresidential portion of a mixed-use inclusionary or market-rate
development shall be subject to the two-and-a-half-percent development
fee, unless otherwise exempted below.
(b)
Nonresidential developments shall be exempt from the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF
"State of New Jersey Non-Residential Development Certification/Exemption
Form." Any exemption claimed by a developer shall be substantiated
by that developer.
(c)
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to P.L. 2008, c. 46, shall
be subject to it at such time the basis for the exemption no longer
applies, and shall make the payment of the nonresidential development
fee, in that event, within three years after that event or after the
issuance of the final certificate of occupancy of the nonresidential
development, whichever is later.
(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 Robbinsville as a lien against the real property
of the owner.
F. Collection procedures.
(1) Upon the granting of a preliminary, final or other applicable approval,
for a development, the applicable approving authority shall direct
its staff to notify the construction official responsible for the
issuance of a building permit.
(2) For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, State of New Jersey Non-Residential
Development Certification/Exemption, to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The construction official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
(3) The construction official responsible for the issuance of a building
permit shall notify the local tax assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
(4) Within 90 days of receipt of that notice, the municipal tax assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
(5) The construction official responsible for the issuance of a final
certificate of occupancy notifies the local assessor of any and all
requests for the scheduling of a final inspection on property which
is subject to a development fee.
(6) Within 10 business days of a request for the scheduling of a final
inspection, the municipal assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development;
calculate the development fee; and thereafter notify the developer
of the amount of the fee.
(7) Should Robbinsville 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) Fifty percent of the development fee shall be collected at the time
of issuance of the building permit. The remaining portion shall be
collected at the issuance of the temporary certificate of occupancy.
The developer shall be responsible for paying the difference between
the fee calculated at building permit and that determined at issuance
of temporary certificate of occupancy.
[Amended 4-11-2024 by Ord. No. 2024-10]
(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 Robbinsville. 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 Robbinsville. 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 housing trust
fund to be maintained by the chief financial officer for the purpose
of depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
(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 affordable units;
(b)
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Robbinsville's
affordable housing program.
(3) All interest accrued in the housing trust fund shall only be used
on 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 housing trust fund may be used
for any activity approved by the court to address Robbinsville's fair
share obligation and may be set up as a grant or revolving loan program.
Such activities include, but are not limited to: preservation or purchase
of housing for the purpose of maintaining or implementing affordability
controls, rehabilitation, new construction of affordable housing units
and related costs, accessory apartment, market to affordable, or regional
housing partnership programs, conversion of existing nonresidential
buildings to create new affordable units, green building strategies
designed to be cost saving and in accordance with accepted national
or state standards, purchase of land for affordable housing, improvement
of land to be used for affordable housing, extensions or improvements
of roads and infrastructure to affordable housing sites, financial
assistance designed to increase affordability, administration necessary
for implementation of the Housing Element and Fair Share Plan, or
any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through
5:97-8.9 and specified in the approved spending plan.
(2) Funds shall not be expended to reimburse Robbinsville for past housing
activities.
(3) At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the municipal Fair Share
Plan. One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
(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.
(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 use of development
fees in this manner shall entitle Robbinsville to bonus credits pursuant
to N.J.A.C. 5:97-3.7.
(c)
Payments in lieu of constructing affordable units on site and
funds from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
(4) Robbinsville may contract with a private or public entity to administer
any part of its Housing Element and Fair Share Plan, including the
requirement for affordability assistance, in accordance with N.J.A.C.
5:96-18.
(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 consultant fees necessary
to develop or implement a new construction program, a Housing Element
and Fair Share Plan, and/or an affirmative marketing program. In the
case of a rehabilitation program, no more than 20% of the revenues
collected from development fees shall be expended for such administrative
expenses. Administrative funds may be used for income qualification
of households, monitoring the turnover of sale and rental units, and
compliance with the court's monitoring requirements. Legal or other
fees related to litigation opposing affordable housing sites or objecting
to the Council's regulations and/or action are not eligible uses of
the Affordable Housing Trust Fund.
I. Monitoring. Robbinsville shall complete and return to Fair Share
Housing Center (FSHC) all monitoring forms included in monitoring
requirements related to the collection of development fees from residential
and nonresidential developers, payments in lieu of constructing affordable
units on site, funds from the sale of units with extinguished controls,
barrier free escrow funds, rental income, repayments from affordable
housing program loans, and any other funds collected in connection
with Robbinsville's housing program, as well as to the expenditure
of revenues and implementation of the plan approved by the court.
All monitoring reports shall be completed on forms designed by COAH.
J. Ongoing collection of fees. The ability for Robbinsville to impose,
collect and expend development fees shall expire with its judgment
of compliance and repose unless Robbinsville has filed an adopted
Housing Element and Fair Share Plan with the court, has petitioned
the court for review and approval, and has received the court's approval
of its development fee ordinance. Robbinsville 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 and repose, nor shall Robbinsville retroactively impose
a development fee on such a development. Robbinsville shall not expend
development fees after the expiration of its judgment of compliance.