[HISTORY: Adopted by the Township Committee
of the Township of Mantua 5-8-2023 by Ord. No. O-7-2023.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 98,
Affordable Housing Development Fees, adopted 6-23-2008 by Ord. No. O-11-2008.
This chapter 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 through 38 (N.J.S.A. 52:27D-329.2), the Statewide Nonresidential
Development Fee Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7), and
the Township's 2021 Settlement Agreement with Fair Share Housing
Center (ESX-L-2778-18). Fees collected pursuant to this chapter shall
be used for the purpose of providing very-low-, low- and moderate-income
housing in accordance with a Court-approved spending plan.
The following terms when used in this chapter shall have the
meaning given in this section.
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipally sponsored construction project or a 100% affordable
housing development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act,[1] or any successor agency charged with the administration
of the Act.
The Superior Court of New Jersey, Law Division.
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 authorized by Holmdel Builders 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.
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).
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.
A.Â
Imposed fees.
(1)Â
Within all residential zoning districts, developers shall pay a development
fee of 1.5% of the equalized assessed value of any eligible residential
activity.
(2)Â
Nonresidential development in residential districts shall pay such
fees as are set forth for nonresidential districts.
(3)Â
If a "d" variance is granted pursuant to N.J.S.A. 40:55D-70d(5),
then the additional residential units realized (above what is permitted
by right under the existing zoning) will incur a bonus development
fee of 6% rather than the development fee of 1.5%. However, if the
zoning on a site has changed during the two-year period preceding
the filing of the "d" 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 "d" variance application.
B.Â
Eligible extractions, including extractions for residential developments.
(1)Â
Developers of low- and moderate-income units shall be exempt from
paying development fees.
(2)Â
Developers are also exempt from paying development fees for the development
of the following specific uses: not-for-profit uses; federal, state
and municipal government uses; churches and other places of worship;
and public schools.
(3)Â
Developers who expand an existing nonresidential structure or change
to a more intense use shall pay a development fee. The development
fee shall be calculated based on the increase in the equalized assessed
value of the improved structure.
(4)Â
Developers who have received preliminary or final approval prior
to the effective date of this chapter shall be exempt from paying
a development fee unless the developer seeks a substantial change
in the approval.
(5)Â
Developers who expand, enlarge or improve existing single-family
or two-family residences are exempt from paying development fees.
A.Â
Imposed fees.
(1)Â
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)Â
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)Â
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 the 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.Â
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(1)Â
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.
(2)Â
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.
(3)Â
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 40:55D-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.
(4)Â
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.
(5)Â
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 Mantua as a lien against the
real property of the owner.
A.Â
Upon the granting of a preliminary, final or other applicable approval
for a development, the applicable approving authority or entity shall
notify or direct its staff to notify the construction official responsible
for the issuance of a building permit.
B.Â
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.
C.Â
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.Â
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.Â
The Construction Official responsible for the issuance of a final
certificate of occupancy shall notify 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.Â
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.Â
Should the Township of Mantua 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-8.6b).
H.Â
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 time of issuance of the certificate of occupancy.
The developer shall be responsible for paying the difference between
the fee calculated at building permit issuance and that determined
at the issuance of the certificate of occupancy. No certificate of
occupancy shall be issued to the developer until all remaining developer
fees have been paid in full.
I.Â
Appeal of development fees.
(1)Â
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 Mantua Township. 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)Â
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 Mantua Township.
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.Â
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.Â
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)Â
Payments in lieu of on-site construction of affordable units;
(2)Â
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached dwelling unit development
accessible;
(3)Â
Rental income from municipally operated units;
(4)Â
Repayments from affordable housing program loans;
(5)Â
Recapture funds;
(6)Â
Proceeds from the sale of affordable units; and
(7)Â
Any other funds collected in connection with the Township of Mantua's
affordable housing program.
C.Â
In the event of a failure by the Township of Mantua 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 Township of Mantua, or, if not practicable, then
within the county.
(1)Â
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.
D.Â
All interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
A.Â
The expenditure of all funds shall conform to a spending plan approved
by the Superior Court. Funds deposited in the Affordable Housing Trust
Fund may be used for any activity approved by the Court to address
Mantua Township'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.
B.Â
Funds shall not be expended to reimburse Mantua Township for past
housing activities.
C.Â
At least 30% of all development fees collected and interest earned
on such fees shall be used to provide affordability assistance to
very-low-, 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 5, in which Mantua is
located.
(1)Â
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.
(2)Â
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.
(3)Â
Payments in lieu of constructing affordable housing units on-site
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
D.Â
Mantua Township 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.
E.Â
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.
(1)Â
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.
(2)Â
Administrative funds may be used for income qualification of households,
monitoring the turnover of sale and rental units, and compliance with
the monitoring requirements. Legal or other fees related to litigation
opposing affordable housing sites or related to securing or appealing
a judgment from the Court are not eligible uses of the Affordable
Housing Trust Fund.
A.Â
The Township of Mantua shall provide annual reporting of Affordable
Housing Trust Fund activity to the New Jersey Department of Community
Affairs, COAH or Local Government Services or other entity designated
by the State of New Jersey, and Fair Share Housing Center, as well
as posting it to the municipal website, using forms developed for
this purpose by the New Jersey Department of Community Affairs, COAH
or Local Government Services, or any other forms endorsed by the Special
Master and Fair Share Housing Center.
A.Â
The ability of Mantua Township 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 Mantua Township 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.
B.Â
If the Township of Mantua fails to renew its ability to impose and
collect development fees after the expiration of its judgment of compliance
and repose, 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 Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320).
C.Â
After the expiration of the judgment of compliance and repose, if
the Township does not pursue or obtain continued authorization, Mantua
Township shall not impose a residential development fee on a development
that receives preliminary or final site plan approval, retroactively
impose a development fee on such a development, or expend any of its
collected development fees.