[Adopted 12-1-2008 by Ord. No. 08-29[1]]
[1]
Editor’s Note: This ordinance also repealed
former Part 3, Uniform Growth-Based Affordable Housing Production,
adopted 3-6-2006 by Ord. No. 06-01.
This Part 3 shall be known as "Residential and Nonresidential Development Requirements."
A.
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.
B.
Pursuant to P.L. 2008, c. 46, § 8 (N.J.S.A.
52:27D-329.2), and the Statewide Nonresidential Development Fee Act
(N.J.S.A. 40:55D-8.1 through 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 Council or court of competent jurisdiction
and have a COAH-approved spending plan may retain fees collected from
nonresidential development.
C.
This part establishes standards for the collection,
maintenance, and expenditure of development fees pursuant to COAH's
regulations and in accordance P.L. 2008, c. 46, §§ 8
and 32 through 38. Fees collected pursuant to this part shall be used
for the sole purpose of providing low- and moderate-income housing.
This part shall be interpreted within the framework of COAH's rules
on development fees, codified at N.J.A.C. 5:97-8.
The following terms, as used in this part, shall
have the following meanings:
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.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
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.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
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.S.A. 54:1-35a through 54:1-35c).
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.
A.
Residential development of affordable housing obligations
on site. Every residential development that consists of five or more
dwelling units shall be required to build the applicable number of
affordable housing units on site. Payments in lieu of construction
shall be prohibited. If there is a fractional affordable unit required,
the applicant shall be required to pay a residential development fee
of 1.5% of the equalized assessed valuation for each market-priced
unit which contributed to the fractional unit.
B.
Imposed fees.
(1)
Within the Township of North Brunswick's zoning district(s),
residential developers, except for developers of the types of development
specifically exempted below, shall pay a fee of 1 1/2% of the
equalized assessed value for residential development provided no increased
density is permitted.
(2)
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 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.
(3)
Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal 1 1/2%
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.
C.
Eligible exactions, ineligible exactions and exemptions
for residential development.
(1)
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.
(2)
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.
(3)
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.
(4)
Residential structures that are demolished and replaced
as a result of a natural disaster, alterations or additions to single-family
homes, and improvements to single-family properties such as finishing
a basement, installing a deck or patio, installing a pool, and similar
improvements shall be exempt from paying a development fee.
A.
Imposed fees.
(1)
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.
(2)
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.
(3)
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.
B.
Eligible exactions, ineligible exactions and exemptions
for nonresidential development.
(1)
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.
(2)
The two-and-a-half-percent fee shall not apply to
an increase in equalized assessed value resulting from alterations,
change in use within existing footprint, reconstruction, renovations
and repairs.
(3)
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 the Township of North
Brunswick as a lien against the real property of the owner.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
Should the Township of North Brunswick 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 § 37
of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
H.
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.
I.
Appeal of development fees.
(1)
A developer may challenge residential development
fees imposed by filing a challenge with the County Board of Taxation.
Pending a review and determination by the Board, collected fees shall
be placed in an interest-bearing escrow account by the Township of
North Brunswick. 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.
(2)
A developer may challenge nonresidential development
fees imposed by filing a challenge with the Director of the Division
of Taxation. Pending a review and determination by the Director, which
shall be made within 45 days of receipt of the challenge, collected
fees shall be placed in an interest-bearing escrow account by the
Township of North Brunswick. 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.
A.
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.
B.
The following additional funds shall be deposited
in the Affordable Housing Trust Fund and shall at all times be identifiable
by source and amount:
(1)
Payments in lieu of on-site construction of affordable
units;
(2)
Developer-contributed funds to make 10% of the adaptable
entrances in a townhouse or other multistory attached development
accessible;
(3)
Rental income from municipally operated units;
(4)
Repayments from affordable housing program loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with the Township
of North Brunswick's affordable housing program.
C.
Within seven days from the opening of the trust fund
account, the Township of North Brunswick shall provide COAH with written
authorization, in the form of a three-party escrow agreement between
the municipality, the bank and COAH, to permit COAH to direct the
disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).
D.
All interest accrued in the housing trust fund shall
only be used on eligible affordable housing activities approved by
COAH.
A.
The expenditure of all funds shall conform to a spending
plan approved by COAH. Funds deposited in the housing trust fund may
be used for any activity approved by COAH to address the Township
of North Brunswick'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.
B.
Funds shall not be expended to reimburse the Township
of North Brunswick for past housing activities.
C.
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.
(1)
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.
(2)
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 may entitle the Township
of North Brunswick to bonus credits pursuant to N.J.A.C. 5:97-3.7.
(3)
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.
D.
The Township of North Brunswick 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.
E.
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 COAH'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.
The Township of North Brunswick shall complete
and return to COAH 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 the Township of North Brunswick's housing program, as well as
to the expenditure of revenues and implementation of the plan certified
by COAH. All monitoring reports shall be completed on forms designed
by COAH.
The ability for the Township of North Brunswick
to impose, collect and expend development fees shall expire with its
substantive certification unless the Township of North Brunswick has
filed an adopted Housing Element and Fair Share Plan with COAH, has
petitioned for substantive certification, and has received COAH's
approval of its development fee ordinance. If the Township of North
Brunswick fails to renew its ability to impose and collect development
fees prior to the expiration of substantive certification, it may
be subject to forfeiture of any or all funds remaining within its
municipal 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.S.A. 52:27D-320). The
Township of North Brunswick 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 Township of North Brunswick
retroactively impose a development fee on such a development. The
Township of North Brunswick shall not expend development fees after
the expiration of its substantive certification or judgment of compliance.
