[Added 9-28-2016 by Ord.
No. 2016-08]
This article shall take effect upon approval by the Superior
Court of the State of New Jersey or appropriate state regulatory agency
of the State of New Jersey.
As used in this article, the following terms shall have the
meanings indicated:
AFFORDABLE HOUSING
Any housing unit with an acquisition price or rent level
not exceeding the maximum resale or rent level for low- and moderate-income
housing as set forth in N.J.A.C. 5:94 et seq.
COAH
The New Jersey Council on Affordable Housing, established
under the Fair Housing Act of 1985, and which has primary jurisdiction for the administration
of low- and moderate-income housing obligations in accordance with
sound regional planning considerations in the state.
DEVELOPMENT FEES
Money paid by an individual, person, partnership, association,
company, or corporation for the improvement of property as permitted
in N.J.A.C. 5:94 et seq.
EQUALIZED ASSESSED VALUE
The value of a property determined by the Borough Tax Assessor
through a process designed to ensure that all property in the Borough
is assessed at the same assessment ratio or ratios required by law.
Estimates at the time of 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 Tax
Assessor.
SUBSTANTIVE CERTIFICATION
A determination by COAH approving the Borough of Kenilworth's
Housing Element and Fair Share Plan in accordance with the provisions
of the Fair Housing Act and the rules and criteria as set forth therein. A grant
of substantive certification shall be valid for a period of 10 years
in accordance with the terms and conditions contained therein.
[Amended 9-12-2018 by Ord. No. 2018-14]
A. Residential development.
(1)
Residential development fees shall be 1% of the equalized assessed
value for residential development within the OR Zone District, which
is not exempt from the provisions of this article as set forth below,
provided no increase in density is permitted.
(2)
If a "D" variance is granted by the Borough of Kenilworth Planning
Board pursuant to N.J.S.A. 40:55D-70d(5), 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%. However, if the zoning on a site has changed during the
two-year period preceding the filing of the "D" 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
years preceding the filing with the Borough of Kenilworth Planning
Board of the "D" variance application.
B. Nonresidential development.
[Amended 3-11-2020 by Ord. No. 2020-01]
(1)
Nonresidential development fees shall be 2.5% of the equalized
assessed value for nonresidential development within all zone districts,
which is not exempt from the provisions of this subsection as set
forth in this article.
(2)
If a "D" variance is granted by the Borough of Kenilworth Planning
Board, pursuant to N.J.S.A. 40:55D-70d(4), then the additional floor
area ration (FAR) 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 2.5%. However, if the zoning on a site
has changed during the two-year period preceding the filing of the
"D" 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 years preceding the filing with the Borough of
Kenilworth Planning Board of the "D" variance application.
The Borough shall collect 50% of the fee on any specific development
prior to and as a condition of the issuance of the building permit
therefor. The remaining portion shall be collected prior to and as
a condition of the issuance of the certificate of occupancy. Once
the final equalized assessed value of a particular development has
been determined by the Tax Assessor, and such final equalized assessed
value is greater than the estimated equalized assessed value, the
developer shall, within 10 business days from receipt of notification
from the Borough, pay to the Borough the difference between the development
fees required to be paid by the developer once such final equalized
assessed value has been determined and the estimated development fees
actually paid by the developer. The failure of the developer to make
timely payments of the aforesaid deficiency shall entitle the Borough
to file, without notice to the developer, a lien against the subject
development. In the event that the Borough shall file such lien, the
Borough may add to the aforesaid deficiency amount reasonable attorney
fees to file and discharge such lien, together with any and all costs
incurred to file and discharge said lien. In the event that the estimated
equalized assessed value proves to have been too high, the Borough
shall promptly refund the difference between the estimated development
fees actually paid by the developer and the development fees required
to be paid by the developer once such final equalized assessed value
has been determined.
Imposed and collected development fees that are challenged shall
be placed in an interest-bearing escrow account by the Chief Financial
Officer of the Borough. If all or a portion of the contested fees
are returned to the developer, the accrued interest on the returned
amount shall also be returned.
All development fees shall be deposited with the Chief Financial
Officer of the Borough in a separate designated interest-bearing housing
trust fund. The development fees placed in the housing trust fund
shall be deemed "dedicated revenues" as such term is defined in N.J.S.A.
40A:4-36. In establishing the housing trust fund, the Borough shall
provide written authorization in the form of a three-party escrow
agreement between the Borough, the bank and COAH to permit COAH to
direct the disbursement of the funds as provided for in N.J.A.C. 5:94-6.16(b).
This three-party escrow agreement shall be submitted to COAH within
seven days from the opening of the trust fund account. All interest
accrued in the housing trust fund shall only be used on eligible affordable
housing activities approved by COAH.
The Borough shall complete and return to COAH all monitoring forms related to the collection of development fees, expenditures of revenues, and implementation of the spending plan (discussed in §
120-35.11 below) certified by COAH. Financial reports, annual program implementation, and monitoring reports shall be completed by the Borough on forms designed by COAH.
The Borough shall submit to COAH a spending plan for the development
fees collected by it prior to the expiration of its substantive certification
period. Plans to spend development fees shall consist of the following
information:
A. A projection of revenues anticipated from imposing fees on development,
based on historic activity;
B. A description of the administrative mechanism that the Borough will
use to collect and distribute revenues;
C. A description of the anticipated use of all development fees;
D. A schedule for the creation or rehabilitation of housing units;
E. In the event the Borough envisions being responsible for public sector
or nonprofit construction of housing, a pro forma statement of the
anticipated costs and revenues associated with the development;
F. The manner through which the Borough will address any expected or
unexpected shortfall if the anticipated revenues from development
fees are not sufficient to implement the plan;
G. A description of the funds anticipated; and
The ability for the Borough of Kenilworth to impose, collect
and expend development fees shall expire with the expiration of its
substantive certification unless the Borough has filed a revised and
adopted Housing Element and Fair Share Plan, has petitioned for substantive
certification for the succeeding round, and has received COAH's approval
of a revised development fee ordinance prior to the expiration. If
the Borough of Kenilworth fails to act before the expiration of its
substantive certification, the Borough may only resume the imposition
and collection of development fees by filing a revised and adopted
Housing Element and Fair Share Plan, petitioning for substantive certification
for the succeeding round, and after receiving COAH's approval of a
revised development fee ordinance. The Borough of Kenilworth shall
not impose a development fee on a development that receives preliminary
or final approval after the expiration of its substantive certification,
nor shall the Borough of Kenilworth retroactively impose a development
fee on such a development. The Borough of Kenilworth shall not expend
development fees after the expiration of its substantive certification.