Borough of Haddon Heights, NJ Fees, Guaranties, Inspections and Off-Tract Improvements

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.

Pursuant to P.L.2008, c.46 section 8 (C. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (C. 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 are under the jurisdiction of COAH or a court of competent jurisdiction and have a COAH-approved or court-approved spending plan may retain fees collected from nonresidential development.

In Re: Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015), also known as the Mount Laurel IV decision, the Supreme Court remanded COAH's duties to the Superior Court. As a result, affordable housing fee collections and expenditures from the municipal affordable housing trust funds to implement municipal third round Fair Share Plans through July 1, 2025 are under the court's jurisdiction and are subject to approval by the court.

AFFORDABLE HOUSING DEVELOPMENT

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 32-38. Fees collected pursuant to this section shall be used for the sole purpose of providing and supporting 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. 5:93-8.

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

A development included in the Borough's Fair Share Plan or otherwise intended to address the Borough's fair share obligation, and includes, but is not limited to, an inclusionary development, a municipal construction project, or a 100% affordable development.

COAH or THE COUNCIL

The New Jersey Council on Affordable Housing established under the Fair Housing Act which previously had primary jurisdiction over the administration of housing obligations in accordance with sound regional planning consideration in the state. Pursuant to the Executive Reorganization Act of 1969, P.L. 1969, c. 203 (C. 52:14C-1 et seq.), the Governor abolished the Council and transferred all functions, powers, and duties to the Commissioner of the Department of Community Affairs, effective August 29, 2011. As such, any and all references to COAH shall mean the Department.

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 and in support of affordable housing as permitted in N.J.A.C. 5:93-8.

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 (C.54:1-35a through C.54:1-35c). The Tax Assessor may estimate the equalized assessed value at the time of issuance of a building permit utilizing estimates for construction cost. Final equalized assessed value will be determined by the tax assessor at project completion.

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.

HOUSING TRUST FUND

The interest-bearing account in which all development fees will be deposited pursuant to N.J.A.C. 5:93-8.15.

JUDGEMENT OF COMPLIANCE AND REPOSE

A judgement issued by the Superior Court approving a municipality's plan to satisfy its fair share obligation.

Residential development fees.

Imposed fees.

Within all residential zoning 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.

When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit (above what is permitted by the base zone) 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.

Eligible exactions, ineligible exactions and exemptions for residential development.

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.

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.

Development fees shall not be imposed on isolated single lots (infill lots) when the lot was not part of a subdivision, and when only one single-family dwelling is constructed.

(d)

Residential structures demolished and replaced as a result of a fire, flood, or similar natural disaster shall be exempt from paying a development fee.

Nonresidential development fees.

Imposed fees.

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.

Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.

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.

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 the 2.5% development fee, unless otherwise exempted below.

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

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.

(d)

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.

(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 Haddon Heights Borough as a lien against the real property of the owner.

(f)

Religious organizations that engage in construction activity for religious purposes shall be exempt from paying development fees.

Collection procedures.

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.

For non-residential 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.

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.

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.

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 Haddon Heights Borough fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in subsection b. of section 37 of P.L. 2008, c. 46 (C. 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 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 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 Haddon Heights Borough. 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, R.S. 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 Haddon Heights Borough. 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, R.S. 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 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.

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 affordable units;

Developer contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;

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 Haddon Heights Borough's affordable housing program.

In the event of a failure by the Borough 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 judgement of compliance or a revocation of the judgement 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 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, to the extent practicable, be utilized for affordable housing programs within the Borough of Haddon Heights, 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 and the court may, after considering the evidence and providing the municipality a reasonable opportunity to respond and/or to remedy the noncompliant conditions, 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.

All interest accrued in the housing trust fund shall only be used on 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 Department or the Superior Court (as the case may be). Funds deposited in the housing trust fund may be used for any activity approved by the Department or court to address Haddon Heights Borough'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. 5:93-8 and specified in the approved spending plan.

Funds shall not be expended to reimburse Haddon Heights Borough for past housing activities.

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.

Affordability assistance programs may include down payment assistance, security deposit assistance, low interest loans, rental assistance, assistance with homeowner's association or condominium fees and special assessments, and assistance with emergency repairs.

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.

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.

Haddon Heights Borough 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. 5:94-7.

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 Department'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.

Monitoring.

On an annual basis commencing with the first anniversary of the entry of the order granting a final judgement of compliance and repose, Haddon Heights Borough shall provide annual reporting of trust fund activity to the New Jersey Department of Community Affairs (DCA), COAH or Local Government Services (LGS) 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 DCA, COAH, or LGS. This reporting shall include an accounting of all trust fund activity, including the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with the Borough's housing program, as well as the expenditure of revenues and implementation of the plan approved by the court.

Ongoing collection of fees.

The ability for Haddon Heights Borough to impose, collect and expend development fees shall expire with its judgment of compliance unless Haddon Heights has filed an adopted Housing Element and Fair Share Plan with the court, has filed a declaratory judgement action, and has received court approval of its development fee ordinance. If Haddon Heights Borough fails to renew its ability to impose and collect development fees prior to the expiration of judgment of compliance, it may be subject to forfeiture of any or all funds remaining within its municipal 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 (C.52:27D-320). The Borough shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall the Borough retroactively impose a development fee on such a development. The Borough shall not expend development fees after the expiration of its substantive certification or judgment of compliance.

Performance guaranty estimate.

No final application for development, whether for an entire tract or a section thereof, shall be approved by the Board until the satisfactory completion and performance of all required public improvements have been certified to the Board by the Borough Engineer unless the owner shall have filed with the Borough a performance guaranty assuring the installation of said public improvements on or before an agreed date as hereinafter provided.

It is the intention of the governing body that residents living in each new section of a development be provided with lot and/or dwelling unit as well as tract area improvements that are as complete as possible. 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 guaranty to a percentage extent equal to the percent of lots and/or dwelling units which have been conveyed in any manner.

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

Approval by Borough Attorney.

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

The Borough Attorney shall notify the Secretary of the Board that the performance guaranty is properly executed and can be placed on the agenda of the Board's next meeting.

Bonding and cash requirements.

The performance guaranty shall be made payable to and deposited with Haddon Heights Borough and shall be in the form of either cash, a certified check or other financial instrument acceptable to the Borough Attorney or a performance bond in which the owner shall be principal provided by an acceptable surety company licensed to do business in the State of New Jersey. The Borough shall issue its receipts for such deposits and shall cause the same to be deposited in a bank named by the municipality in the name of the Borough. Said deposits shall be retained as security for completion of all requirements and shall be returned to the owner upon completion of all required work or, in the event of default on the part of the owner, shall be used by the Borough to pay the cost and expense of obtaining completion of all requirements.

Ten percent of the amount of the approved performance guaranty estimate shall be deposited by the owner in cash with the Borough. The remaining 90% may be in cash or surety bond. In the event of default, the ten-percent fund herein mentioned shall be first applied to the completion of the requirements, and the cash or surety bond shall thereafter be resorted to, if necessary, for the completion of the requirements. The cash or surety bond shall recite the foregoing provisions.

Inspection and tests.

All improvements and utility installations shall be inspected during the time of their installation by the Borough Engineer. On-site private improvements relating to drainage, landscaping and circulation as shown on an approved final subdivision or site plan shall also be subject to inspection and approval by the Borough Engineer. The cost of said inspection shall be the responsibility of the owner, who shall deposit with the Borough Treasurer/CFO a fee in accordance with the Borough Fee Ordinance.[1]

[1]

Editor's Note: See Ch. 213, Fees.

In no case shall any improvements or utility installation be done without permission from the Borough Engineer. At least two working days' notice shall be given to the Borough Engineer prior to any construction so that he or a qualified representative may be present at the time the work is to be done.

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 earthmoving is completed. The seeding of grass and the placing of the surveyor's monuments shall be among the last operations.

The Borough Engineer's office shall be notified after each of the following phases of the work has been completed 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.

Drainage pipes and other drainage construction.

Street name signs.

Monuments.

Sanitary sewers.

Detention and/or retention basins.

(l)

Topsoil, seeding and plantings.

Inspection by the Borough of the installation of improvements and utilities shall not operate to subject Haddon Heights Borough to any future liability, including liability for claims or suits, that may 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 contractors, if any.

(6)

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

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

Where partial approval is granted, except as set forth hereinafter, the obligor shall be released from all liability pursuant to the performance guaranty for such improvements, except for that portion deemed to be required to secure provision of the improvements not yet approved. The Borough may retain 30% of the performance guaranty posted to ensure the completion of all improvements and that said 30% may be applied against all improvements, regardless of when completed.

If any portion of the required improvements is rejected, the obligor shall complete such improvements and, upon completion, shall notify the Borough Council, and the same procedures shall be followed as in the first instance.

Conditions and acceptance of improvements. The approval of any application for development by the Borough shall in no way be construed as acceptance of any street or drainage system or any other improvement, nor shall such approval obligate the Borough in any way to exercise jurisdiction over such street or drainage system or other improvement. No improvement shall be accepted by the governing body unless and until all of the following conditions are met:

The Borough Engineer shall have certified in writing that the improvements are complete and that they comply with the requirements of this chapter.

The final application for development shall have been approved by the Board.

The owner shall have filed with the Borough Council a maintenance guaranty in an amount equal to not more than 15% of the cost of installing the improvements, to run for a period of two years. The procedures and requirements governing such maintenance guaranty shall be identical with the procedures and requirements for a performance guaranty set forth in this chapter. The requirements for a maintenance guaranty may be waived by the Borough Council only 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 period the owner has maintained the improvements in a satisfactory manner.