In Holmdel Builder's Association vs. Holmdel
Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined
that mandatory development fees are authorized by the Fair Housing
Act of 1985, N.J.S.A. 52:27D-301 et seq., and the State Constitution,
subject to the imposition of rules by COAH. The purpose of this article
is to establish standards for the collection, maintenance and expenditure
of development fees pursuant to COAH'S adopted rules. Fees collected
pursuant to this article shall be used for the sole purpose of providing
low- and moderate-income housing. This article shall be interpreted
within the framework of COAH's rules on development fees.
The following definitions shall control:
BOROUGH
Shall refer to the Borough of Chatham.
[Added 3-28-2005 by Ord. No. 05-04]
COAH
The New Jersey Council on Affordable Housing.
DEVELOPMENT FEES
Money paid by an individual, person, partnership, association,
company or corporation for the improvement of property as permitted
in COAH's rules.
EQUALIZED ASSESSED VALUE
The value of a property determined by the Municipal Tax Assessor
through a process designed to ensure that all property in the municipality
is assessed at the same assessment ratio or ratios required by law.
Estimates at the time of issuance of a building permit may be obtained
by the Tax Assessor utilizing estimates for construction cost. Final
equalized assessed value will be determined at project completion
by the Municipal Tax Assessor.
SUBSTANTIVE CERTIFICATION
A determination of COAH approving a municipality's housing
element and fair share plan in accordance with the provisions of the
Act and the rules and criteria as set forth herein. A grant of substantive
certification shall be valid for a period of six years in accordance
with the terms and conditions contained therein.
[Amended 3-28-2005 by Ord. No. 05-04]
A. Residential zones.
(1) In all residential zones, a developer shall pay residential
development fees which will be a maximum of 1.5% of the equalized
assessed value for residential development, the coverage of the homeowner
warranty document of a for-sale unit or the appraised value on the
document utilized for construction financing for a rental unit, provided
that no increased density is permitted.
[Amended 11-24-2008 by Ord. No. 08-24]
(2) When the Borough approves an increase in residential
density pursuant to N.J.S.A. 40:55D-70d(5) (known as a “d”
variance), the Borough may impose a development fee upon the developer
of up to 6% of either the equalized assessed value for each additional
unit that may be realized, the coverage amount on the homeowner warranty
document for each additional for-sale unit or the appraised value
on the document utilized for construction financing for each additional
rental unit. (Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal 1% of
either the equalized assessed value, the coverage amount on the homeowner
warranty document or the appraised value on the document utilized
for construction financing on the first two units; and 6% of either
the equalized assessed value, the coverage amount on the homeowner
warranty document or the appraised value on the document utilized
for construction financing for the two additional units.) However,
if the zoning on a site has changed during the two-year period preceding
the filing of such a variance application, the 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.
B. Nonresidential zones.
(1) In all nonresidential zones, a developer shall pay
nonresidential development fees which shall be 2.5% of either the
equalized assessed value for nonresidential development or the appraised
value. The Borough may also utilize any recognized industry standard
to establish values of nonresidential development that is acceptable
to both the Borough and COAH.
[Amended 11-24-2008 by Ord. No. 08-24]
(2) When the Borough approves an increase in floor area
pursuant to N.J.S.A. 40:55D-70d (4) (known as a “d” variance),
the Borough may impose a development fee of up to 6% on the additional
floor area 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 floor area for the purposes of calculating the
bonus development fee shall be the highest floor area permitted by
right during the two-year period preceding the filing of the variance
application.
(3) The imposition of payments in lieu of development
fees pursuant to a development fee ordinance approved by COAH pursuant
to N.J.A.C. 5:93-8 shall not be construed as a condition of preliminary
or final site plan approval or as a stipulation included in a developer’s
agreement for the purposes of calculating growth exclusions pursuant
to N.J.A.C. 5:94-2.4(a)5.
[Amended 4-25-2005 by Ord. No. 05-09]
A. There is hereby created an interest-bearing Housing
Trust Fund to be maintained at a bank approved by the Mayor and Borough
Council for the purpose of receiving development fees from residential
and nonresidential developers. All development fees paid by the developers
pursuant to this article shall be deposited in this fund. No money
shall be expended from the Housing Trust Fund unless the expenditure
conforms to a spending plan approved by COAH.
B. If COAH determines that the Borough of Chatham is
not in conformance with COAH's rules on development fees, COAH is
authorized to direct the manner in which all development fees collected
pursuant to this article shall be expended. Such authorization is
pursuant to this article, COAH's rules on development fees and the
written authorization from the governing body to the bank.
This article shall expire if:
A. COAH dismisses or denies the Borough of Chatham's
petition for substantive certification.
B. COAH revokes substantive certification or its certification
of this article.
C. Substantive certification expires prior to the Borough
of Chatham's filing an adopted housing element with COAH, petitioning
for substantive certification or receiving COAH's approval of this
article.