[Added 6-2-1997 by Ord. No. 1823-97;
amended 6-8-2009 by Ord. No. 9-2009]
This article 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 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, codified at N.J.A.C. 5:97-8.
A.
For any residential development, developers, except for developers
of the types of development specifically exempted below, shall pay
a fee of 1.5% of the equalized assessed value for residential development,
provided no increased density is permitted.
B.
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. Example: If an approval allows four units
to be constructed on a site that was zoned for two units, the fees
could equal 1.5% 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.
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, except that expansions for single-family
detached and semidetached dwellings shall not pay a fee for expansions.
The development fee shall be calculated on the increase in the equalized
assessed value of the improved structure.
A.
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.
B.
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.
C.
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.
The following provisions shall only apply to those development fees paid into the Township's housing trust fund pursuant to this Article VI (Mandatory Development Fees).
A.
Residential development.
(1)
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality 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)
Residential 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. A change
in an approval which requires a revised preliminary approval shall
be considered to be a substantial change for the purposes of this
section.
(3)
Developments by municipal, county and state governments and houses
of worship shall be exempt from paying mandatory residential development
fees pursuant to this article.
B.
Nonresidential development.
(1)
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 below.
(2)
The fee of 2.5% 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.
(4)
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.
(5)
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 Moorestown Township as a lien against the real
property of the owner.
A.
The fee percentage to be collected shall be vested on the date that
the building permit is issued.
B.
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 code official responsible for
the issuance of a building permit.
C.
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 Form N-RDF. The tax assessor shall
verify exemptions and prepare estimated and final assessments as per
the instructions provided in Form N-RDF.
D.
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.
E.
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.
F.
The construction code 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.
G.
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.
H.
Should the Township 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 N.J.S.A. 40:55D-8.6.
I.
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 issuance of the building permit and that determined at issuance
of the certificate of occupancy.
J.
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 Moorestown.
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
Moorestown. 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.
Upon approval by COAH and by the Division of Local Government Services,
the Township of Moorestown shall invest development fee revenue and
proceeds from the sale of units with extinguished controls into the
State of New Jersey Cash Management Fund, provided that the funds
in the Cash Management account that comprise the deposits and income
attributable to such deposits shall at all times be identifiable.
B.
The following additional funds shall be deposited in the 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 Moorestown's affordable
housing program.
C.
Within seven days from the establishment of any housing trust fund
account, the Township of Moorestown shall provide COAH with written
authorization, in the form of a three-party escrow agreement among
the municipality, the bank linked to the Cash Management Fund 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). Nothing herein shall be deemed to affect
any existing affordable housing trust fund or account that has already
been established pursuant to COAH procedures and requirements and
approved by the state agency.
A.
The Township of Moorestown shall not spend development fees until
COAH has approved a plan for spending such fees in conformance with
N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
B.
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 Moorestown'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.
C.
Funds shall not be expended to reimburse Moorestown for past housing
activities.
D.
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. 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.
E.
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.
F.
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.
G.
Moorestown 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.
H.
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.
I.
Ongoing collection of fees. The ability for the Township of Moorestown
to impose, collect and expend development fees shall expire with its
substantive certification unless the municipality 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 Moorestown 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 N.J.S.A. 52:27D-320.
The Township of Moorestown 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 municipality retroactively impose
a development fee on such a development. The Township of Moorestown
shall not expend development fees after the expiration of its substantive
certification.
The Township of Moorestown 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 Moorestown'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.