[HISTORY: Adopted by the Borough Council
of the Borough of Stone Harbor as indicated in article histories.
Amendments noted where applicable.]
[Adopted 12-2-2008 by Ord. No. 1326[1]]
[1]
Editor's Note: This ordinance repealed former
Art. I, Development Fees, adopted 8-5-2008 by Ord. No. 1318.
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 Non-residential 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 a court of competent
jurisdiction and have a COAH-approved spending plan may retain fees
collected from nonresidential development.
C.
This article establishes standards for the collection,
maintenance and expenditure of development fees pursuant to COAH's
regulations and in accordance with 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.
D.
Any and all development fees which may have been required
under Ordinance No. 1318 are hereby waived and extinguished and shall
not be collected.
The following terms, as used in this article,
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 N.J.S.A. 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.
Imposed fees.
(1)
Within the Borough of Stone Harbor districts, residential
developers, except for developers of the types of development specifically
exempted below, shall pay a fee of 1% of the equalized assessed value
for residential development, provided no increased density is permitted.
The imposition of this fee shall be upon the equalized assessed value
of improvements only and not on the land.
(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.
(a)
Example: If an approval allows four units to
be constructed on a site that was zoned for two units, the fees could
equal 1% of the equalized assessed value on the first two units and
the specified higher percentage of 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.
B.
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)
Developers of residential structures demolished and
replaced as a result of a natural disaster shall be exempt from paying
a development fee.
(4)
The one-percent fee shall not apply to an increase
in equalized assessed value of less than $50,000 resulting from alterations,
a change in use within the existing footprint, reconstruction, renovations
and repairs.
(5)
Reconstruction development fees shall only be imposed on the increase in equalized assessed value if, during the period of 12 months immediately preceding the issuance of a building permit, each record owner (except one spouse who meets the domicile and use test qualifies the other spouse) is a NJ domiciliary and the subject property has been that person's principal residence. At the time of filing for the permit, the record owner has the burden to prove and submit evidence of such domicile and principal residence. Presumptive evidence of such domicile and residence are a valid NJ driver's license for the required 12 months and car registration and voter's registration at the subject property's address. Corporate, partnership and family trust ownership will not qualify under this Subsection B(5).
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 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 $0.
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-five-tenths-percent
development fee, unless otherwise exempted below.
(2)
The two-and-five-tenths-percent fee shall not apply
to an increase in equalized assessed value resulting from alterations,
a change in use within the 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 Form
N-RDF, the State of New Jersey Non-Residential Development Fee 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 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 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 the Borough of Stone
Harbor 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, the State of New
Jersey Nonresidential Development Fee Certification/Exemption Form,
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 the 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 Tax 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 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.
G.
Should the Borough of Stone Harbor 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.
The developer shall pay 100% of the calculated development
fee amount prior to the municipal issuance of a final certificate
of occupancy for the subject property.
I.
Appeal of development fees.
(1)
A developer may challenge imposed residential development
fees 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 Borough of Stone Harbor.
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 imposed nonresidential development
fees 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 Borough of
Stone Harbor. 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 Borough
of Stone Harbor's affordable housing program.
C.
Within seven days from the opening of the trust fund
account, the Borough of Stone Harbor 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 Borough of
Stone Harbor'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 8.9 and specified in the approved spending plan.
B.
Funds shall not be expended to reimburse the Borough
of Stone Harbor 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 homeowner's 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 shall entitle the Borough
of Stone Harbor 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 Borough of Stone Harbor 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 Borough of Stone Harbor 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 Borough of Stone Harbor'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.
A.
The ability for the Borough of Stone Harbor to impose,
collect and expend development fees shall expire with its substantive
certification unless the Borough of Stone Harbor 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 Borough of Stone Harbor 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).
B.
The Borough of Stone Harbor 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 Borough of Stone Harbor retroactively
impose a development fee on such a development.
C.
The Borough of Stone Harbor shall not expend development
fees after the expiration of its substantive certification or judgment
of compliance.