Township of Hamilton, NJ
Atlantic County
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Table of Contents
Table of Contents
[Adopted 4-18-2005 by Ord. No. 1523-2005]

§ 167-32 Title.

This article shall be known and may be cited as the "Affordable Housing Development Fee Ordinance of the Township of Hamilton."

§ 167-33 Residential development fees.

[Amended 6-5-2006 by Ord. No. 1566-2006; 12-15-2008 by Ord. No. 1639-2008]
A. 
All new residential dwelling units within the Township of Hamilton, not exempt from the collection of development fees in accordance with the provisions of this article, shall pay to the Township of Hamilton 1.5% of the equalized assessed value of the land and improvements, provided no density increase is permitted.
B. 
In the event that an increase in residential density is permitted pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance), the fee shall be increased to 6% of the equalized assessed value for each additional unit that is realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such 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.

§ 167-34 Nonresidential development fees.

[Amended 6-5-2006 by Ord. No. 1566-2006; 12-15-2008 by Ord. No. 1639-2008]
A. 
Within all zoning districts, all new development of nonresidential buildings and structures on an unimproved lot or lots, not otherwise exempt from the collection of development fees in accordance with the provisions of this article or the Statewide Non-residential Development Fee Act,[1] shall pay to the Township of Hamilton a fee of 2.5% of the equalized assessed value of the land and improvements.
[1]
Editor's Note: See N.J.S.A. 40:55D-8.1 et seq.
B. 
Additions to existing structures to be used for nonresidential purposes, not otherwise exempt from the collection of development fees in accordance with the provisions of this article or the Statewide Non-residential Development Fee Act,[2] shall pay to the Township of Hamilton a fee of 2.5% of the increase in the equalized assessed value of the structure.
[2]
Editor's Note: See N.J.S.A. 40:55D-8.1 et seq.

§ 167-35 Eligible exaction, ineligible exaction and exemptions.

[Amended 2-6-2006 by Ord. No. 1551-2006; 12-15-2008 by Ord. No. 1639-2008]
A. 
Affordable housing developments (e.g., 100% affordable development, inclusionary developments, etc.) and developments where the developer has made a payment in lieu of constructing affordable units shall be exempt from the payment of development fees.
B. 
Whenever nonresidential development is situated on real property that has been previously developed with a building, structure or other improvement, the nonresidential development fee shall be 2.5% of the difference between the equalized assessed value of the land and improvements on the property at the time the final certificate of occupancy is issued and the equalized assessed value, as determined by the tax assessor, at the time the developer or owner, including any previous owners, first sought approval for a construction permit, including, but not limited to demolition permits, pursuant to the State Uniform Construction Code,[1] or approval under the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.). If the calculation required under this subsection results in a negative number, the nonresidential development fee shall be zero.
[1]
Editor's Note: See N.J.S.A. 52:27D-119 et seq.
C. 
Developments that have received preliminary or final site plan approval and a variance from § 203-187 of the Township Code, if applicable, 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.
D. 
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,[2] as specified in the Form N-RDF, State of New Jersey Non-Residential Development Certification/Exemption. Any exemption claimed by a developer shall be substantiated by that developer.
[2]
Editor's Note: See N.J.S.A. 40:55D-8.1 et seq.
E. 
The nonresidential portion of a mixed-use-inclusionary or market-rate development shall be subject to the development fee of 2.5% unless otherwise exempted under this section.
F. 
The 2.5% nonresidential development fee of 2.5% shall not apply to an increase in equalized assessed value resulting from alterations, change in use within the existing footprint, reconstruction, renovations and repairs.
G. 
Loss of exemption.
(1) 
The developer of a nonresidential development exempted from the nonresidential development fee pursuant to this section shall be subject to said fee 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.
(2) 
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 § 167-34 of this article within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by Hamilton Township as a lien against the real property owner.
H. 
All single lot development of owner-occupied housing shall be subject to a development fee of 0.5% of the equalized assessed value of the land and improvements, provided that the lot was owned by the owner, or a member of the owner’s immediate family, and existed on the Official Tax Map of the Township of Hamilton on or before December 17, 2012. For the purpose of this subsection, the term "immediate family" shall mean those persons related by blood or legal relationship in the following manner: grandparents, grandchildren, parents, sons, daughters, brothers and sisters, nieces or nephews, aunts and uncles and first cousins, husbands and wives, civil union partners, great-grandparents, and great-grandchildren.
[Added 12-17-2012 by Ord. No. 1734-2012; amended 2-4-2013 by Ord. No. 1737-2013]

§ 167-36 Collection of fees.

[Amended 12-15-2008 by Ord. No. 1639-2008]
A. 
General. Upon the granting of a preliminary, final or other applicable approval for a development that is subject to the provisions of this article, the applicable approving authority shall notify the construction official responsible for the issuance of construction permits.
B. 
Residential fees.
(1) 
Developers shall pay 50% of the estimated residential development fee to the Township of Hamilton at the time of issuance of building permits. Said fee shall be based on the value estimated by the Tax Assessor prior to the issuance of construction permits.
(2) 
Developers shall pay the balance of the residential development fee to the Township of Hamilton at the issuance of a certificate of occupancy. At the issuance of the certificate of occupancy the Tax Assessor shall calculate the equalized assessed value and the appropriate development fee. The developer shall be responsible for paying the difference between the fee calculated at time of certificate of occupancy and the amount paid at the issuance of construction permits.
C. 
Nonresidential fees.
(1) 
The developer of a nonresidential development shall be provided with a copy of Form N-RDF, State of New Jersey Non-Residential Development Certification/Exemption, as part of the construction permit application package. The developer 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 Form N-RDF. The Tax Assessor shall verify exemptions.
(2) 
The construction official responsible for the issuance of a construction permit shall notify the Tax Assessor of the issuance of the first construction permit for a development which is subject to a development fee.
(3) 
Within 90 days of receipt of that notice, the Tax Assessor, based on the plans provided, shall provide an estimate of the equalized assessed value of the nonresidential development.
(4) 
The construction official responsible for the issuance of a final certificate of occupancy shall notify the Tax Assessor of any and all requests for the scheduling of a final inspection of a property which is subject to a nonresidential development fee.
(5) 
Within 10 days of a request for the scheduling of a final inspection, the Tax 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.
(6) 
Should the Township fail to determine or notify the developer of a nonresidential development of the amount of the development fee within 10 business days of the request for a final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in Subsection 37.b. of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
(7) 
The developer of a nonresidential development shall pay 100% of the calculated nonresidential development fee prior to the issuance of the final certificate of occupancy for the subject property.
D. 
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. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Uniform Tax 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. 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.

§ 167-37 Housing Trust Fund.

A. 
There is hereby created an interest bearing trust fund bank account with Bank of America for the purpose of receiving development fees from residential and nonresidential developers. All development fees paid by 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 or the Superior Court, as the case may be.
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:
[Added 12-15-2008 by Ord. No. 1639-2008[1]]
(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's affordable housing program.
[1]
Editor's Note: This ordinance also redesignated former Subsection B as Subsection D.
C. 
All interest accrued in the Housing Trust Fund shall only be used on eligible affordable housing activities approved by COAH or the Superior Court, as the case may be.
[Added 12-15-2008 by Ord. No. 1639-2008]
D. 
If COAH or the Superior Court (as the case may be) determines that the Township of Hamilton is not in conformance with COAH's Rule on development fees, COAH or the Court are 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 aforesaid Bank.

§ 167-38 Use of funds.

A. 
Money deposited in [a] the Housing Trust Fund may be used for any activity approved by COAH or the Superior Court (as the case may be) for addressing the Township of Hamilton's low- and moderate-income housing obligations and may be set up as a grant or revolving loan fund. Such activities include, but are not necessarily 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 apartment, market-to-affordable, regional housing partnership programs [contribution agreements], 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, the purchase of land for low- and moderate-income housing, extensions and/or improvements of roads and infrastructure to low- and moderate-income housing sites, financial assistance designed to render units more affordable to low- and moderate-income households and administrative costs necessary to implement the Township of Hamilton's housing element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan. The expenditure of all money shall conform to a spending plan approved by COAH and/or the Superior Court.
[Amended 12-15-2008 by Ord. No. 1639-2008]
B. 
At least 30% of all development fees collected and interest earned shall be devoted to render affordable units included in the municipal Fair Share Plan more affordable. 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 regional median income.
[Amended 6-5-2006 by Ord. No. 1566-2006; 12-15-2008 by Ord. No. 1639-2008]
(1) 
Examples of such affordability assistance activities include, but are not limited to: down payment assistance, security deposit assistance, low-interest loans, rental assistance and other forms of assistance allowed pursuant to N.J.A.C. 5:97-8.8(a).
(2) 
Affordability assistance to households earning 30% or less of the regional 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 the Township to bonus credits pursuant to N.J.A.C. 5:97-3.7.
(3) 
Payments made 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.
C. 
No more than 20% of the revenues collected from development fees may be expended on administrative costs necessary to develop, revise or implement the Housing Element and Fair Share Plan, a new construction program 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.
[Added 12-15-2008 by Ord. No. 1639-2008]
(1) 
Legal or other fees related to litigation opposing affordable housing sites or objecting to COAH regulations and/or action are not eligible uses of the Affordable Housing Trust Fund.
(2) 
Hamilton Township 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.
D. 
Development fee revenues shall not be expended to reimburse the Township of Hamilton for housing activities that preceded Substantive Certification by COAH or the issuance of a Final Order of Repose by the Superior Court. Development fees may be used to reimburse the Township for the outlay of funds or bonding for current housing activities prior to the collection of development fees.

§ 167-39 Monitoring.

[Added 6-5-2006 by Ord. No. 1566-2006; amended 12-15-2008 by Ord. No. 1639-2008[1]]
The Township 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's affordable 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.
[1]
Editor's Note: This ordinance also redesignated former § 167-39, Expiration of provisions, as § 167-40.

§ 167-40 Expiration of provisions.

This article permitting the collection of development fees, shall expire as a result of any of the following:
A. 
An action of the Court with jurisdiction or COAH's dismissal or denial of a petition for substantive certification.
B. 
An action by the Court with jurisdiction or COAH's revocation of either substantive certification or its certification of this article.
C. 
The expiration of the time defined by a judgment of repose or substantive certification unless the Township has filed an adopted housing element with COAH or the Court; petitioned for substantive certification and/or entry of a final judgment of compliance; and received COAH's and/or the Court's approval of its Development Fee Ordinance.
D. 
The ability for Township of Hamilton to impose, collect and expend development fees shall expire with its judgment of compliance unless the Township of Hamilton has filed an adopted Housing Element and Fair Share Plan with COAH or the Court, has petitioned for substantive certification, and has received COAH's or the Court's approval of its Development Fee Ordinance. If the Township of Hamilton fails to renew its ability to impose and collect development fees prior to the expiration of its judgment of compliance, 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 Hamilton 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 Hamilton retroactively impose a development fee on such a development. The Township of Hamilton shall not expend development fees after the expiration of its substantive certification or judgment of compliance.
[Added 12-15-2008 by Ord. No. 1639-2008]

§ 167-41 Definitions.

A. 
The following definitions will be added to the Township's current Land Development Ordinances.[1]
[1]
Editor's Note: See Ch. 203, Land Use and Development, included in a separate volume.
B. 
As used in this article, the following terms shall have the meanings indicated:
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.
[Added 12-15-2008 by Ord. No. 1639-2008]
COAH
The New Jersey Council on Affordable Housing.
DEVELOPER
The legal or beneficial owner or owners of a lot or of any land 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.
[Added 12-15-2008 by Ord. No. 1639-2008]
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.
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.
[Added 12-15-2008 by Ord. No. 1639-2008]
HOUSING TRUST FUND
The interest-bearing account in which all development fees will be deposited pursuant to N.J.A.C. 5:97-8.1 et seq.
[Amended 12-15-2008 by Ord. No. 1639-2008]
JUDGMENT OF REPOSE
A judgment issued by the Superior Court approving a municipality's plan to satisfy its fair share obligation.
SUBSTANTIVE CERTIFICATION
A determination by COAH approving a municipality's housing element and fair share plan in accordance with the provisions of the New Jersey Fair Housing Act of 1985[2] and the rules criteria as set forth herein. A grant of substantive certification shall be valid for a period of six years or 10 years in accordance with the terms and conditions contained therein, depending upon the housing cycle in question.
[2]
Editor's Note: See N.J.S.A. 52:27D-301 et seq.