[Added 9-14-2020 by Ord.
No. 2020-1388]
This Ordinance 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 32-38 (C. 52:27D-329.2) and the Statewide Non-Residential Development
Fee Act (C. 40:55D-8.1 through 8.7). Fees collected pursuant to this
Ordinance shall be used for the sole purpose of providing very low,
low- and moderate-income housing.
[Added 9-14-2020 by Ord.
No. 2020-1388]
[Added 9-14-2020 by Ord.
No. 2020-1388]
The following terms, as used in this Ordinance, shall have the
following meanings:
Means 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 100 percent affordable housing
development.
Means the New Jersey Council on Affordable Housing established
under the Fair Housing Act.
Means 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.
Means money paid by a developer for the improvement of property
as authorized by Holmdel Builder's 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.
Means 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 (C.54:1-35a through C.54:1-35c).
Means 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 9-14-2020 by Ord.
No. 2020-1388]
A.
Imposition of Fees.
1.
Within the Township of Branchburg, all residential developers, except
for developers of the types of developments specifically exempted
below and developers of developments that include affordable housing
shall pay a fee of one and a half percent (1.5%) of the equalized
assessed value for all new residential development provided no increased
density is permitted. Development fees shall also be imposed and collected
when an additional dwelling unit is added to an existing residential
structure; in such cases, the fee shall be calculated based on the
increase in the equalized assessed value of the property due to the
additional dwelling unit.
2.
When an increase in residential density is permitted pursuant to
a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers shall
be required to pay a "bonus" development fee of six percent (6%) percent
of the equalized assessed value for each additional unit that may
be realized, except that this provision shall not be applicable to
a development that will include affordable housing. 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.
B.
Eligible Exactions, Ineligible Exactions and Exemptions for Residential
Developments.
1.
Affordable housing developments and/or developments where the developer
has made a payment in lieu of on-site construction of affordable units,
if permitted by Ordinance or by Agreement with the Township of Branchburg,
shall be exempt from the payment of development fees.
2.
Developments that have received preliminary or final site plan approval
prior to the adoption of this Ordinance and any preceding Ordinance
permitting the collection of development fees shall be exempt from
the payment of development fees, unless the developer seeks a substantial
change in the original approval. Where site plan approval is not applicable,
the issuance of a Zoning Permit and/or Construction Permit shall be
synonymous with preliminary or final site plan approval for the purpose
of determining the right to an exemption. In all cases, the applicable
fee percentage shall be determined based upon the Development Fee
Ordinance in effect on the date that the Construction Permit is issued.
3.
Any repair, reconstruction or improvement of a structure, the cost
of which is less than 50% of the market value of the structure before
the improvement or repair is started shall be exempt from the payment
of development fees. For purpose of this section, "market value" shall
mean the equalized assessed value of the existing improvement as established
by the Township Tax Assessor. The cost of the repair, reconstruction
or improvements shall be determined by an itemized construction cost
estimate prepared and submitted to the Construction Official. The
estimate shall be signed and sealed by an architect or professional
engineer licensed by the State of New Jersey, or where no such professionals
are retained, signed by the contractor or the homeowner. Where prepared
by the homeowner or contractor, the Township Engineer may review such
estimates for accuracy. "Substantial improvement" is considered to
commence when the first alteration of any wall, floor or other structural
part of the building commences, whether or not the alteration affects
the external dimensions of the structure. The term does not, however,
include either:
a.
Any project for improvement of a structure to comply with existing
state or local building, fire, health, sanitary or safety code specifications
which are soley necessary to assure safe living conditions; or
b.
Any alteration of a structure listed on the National Register
of Historic Places or a state inventory of historic places but a development
fee shall be charged for any new dwelling constructed as a replacement
for a previously existing dwelling on the same lot that was or will
be demolished, unless the owner resided in the previous dwelling for
a period of one year or more prior to obtaining a demolition permit.
Where a development fee is charged for a replacement dwelling, the
development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
4.
Structural alterations that do not increase gross floor area of a
building or structure or increase the equalized assessed value of
a property shall be exempted from paying a development fee.
5.
Nonprofit organizations constructing residential projects which have
received tax-exempt status pursuant to Section 501(c)(3) of the Internal
Revenue Code, providing current evidence of that status is submitted
to the Municipal Clerk, together with a certification that services
of the organization are provided at reduced rates to those who establish
an inability to pay existing charges, shall be exempted from paying
a development fee.
6.
Federal, state, county and local governments shall be exempted from
paying a development fee.
7.
Homes replaced as a result of a natural disaster, fire or flood shall
be exempt from the payment of a development fee. (This exemption applies
only for the owner of record at the time of the fire, flood, or natural
disaster.)
[Added 9-14-2020 by Ord.
No. 2020-1388]
A.
Imposition of Fees.
1.
Within all zoning districts, non-residential developers, except for
developers of the types of developments specifically exempted below,
shall pay a fee equal to two and one-half (2.5) percent of the equalized
assessed value of the land and improvements, for all new non-residential
construction on an unimproved lot or lots.
2.
Within all zoning districts, non-residential developers, except for
developers of the types of developments specifically exempted below,
shall also pay a fee equal to two and one-half (2.5) percent of the
increase in equalized assessed value resulting from any additions
to existing structures to be used for non-residential purposes.
3.
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of two and
a half percent (2.5%) shall be calculated on the difference between
the equalized assessed value of the pre-existing land and improvements
and the equalized assessed value of the newly improved structure,
i.e. land and improvements, and such calculation shall be made at
the time a final Certificate of Occupancy is issued. If the calculation
required under this Section results in a negative number, the non-residential
development fee shall be zero.
B.
Eligible Exactions, Ineligible Exactions and Exemptions for Non-residential
Development.
1.
The non-residential portion of a mixed-use inclusionary or market
rate development shall be subject to a two and a half percent (2.5%)
development fee, unless otherwise exempted below.
2.
The two and a half percent (2.5%) development fee shall not apply
to an increase in equalized assessed value resulting from alterations,
change in use within the existing footprint, reconstruction, renovations
and repairs.
3.
Non-residential developments shall be exempt from the payment of
non- residential development fees in accordance with the exemptions
required pursuant to the Statewide Non-Residential Development Fee
Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF
"State of New Jersey Non-Residential Development Certification/Exemption".
Any exemption claimed by a developer shall be substantiated by that
developer.
4.
A developer of a non-residential development exempted from the non-residential
development fee pursuant to the Statewide Non-Residential 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
non-residential development fee, in that event, within three years
after that event or after the issuance of the final Certificate of
Occupancy for the non-residential development, whichever is later.
5.
If a property which was exempted from the collection of a non-residential
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 non-residential development fees under these circumstances
may be enforceable by the Township of Branchburg as a lien against
the real property of the owner.
6.
Federal, state, county and local governments of nonresidential development
shall be exempted from paying a development fee.
[Added 9-14-2020 by Ord.
No. 2020-1388]
A.
Upon the granting of a preliminary, final or other applicable approval
for development, the approving authority or entity shall notify or
direct its staff to notify the Construction Official responsible for
the issuance of a Construction Permit.
B.
For non-residential 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 non-residential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the non-residential 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.
C.
The Construction Official responsible for the issuance of a Construction
Permit shall notify the Township Tax Assessor of the issuance of the
first Construction Permit for a development which is subject to a
development fee.
D.
Within 90 days of receipt of such notification, the Township Tax
Assessor shall prepare an estimate of the equalized assessed value
of the development based on the plans filed.
E.
The Construction Official responsible for the issuance of a final
Certificate of Occupancy shall notify the Township Tax Assessor of
any and all requests for the scheduling of a final inspection on a
property which is subject to a development fee.
F.
Within 10 business days of a request for the scheduling of a final
inspection, the Township Tax Assessor shall confirm or modify the
previously estimated equalized assessed value of the improvements
associated with the development; calculate the development fee; and
thereafter notify the developer of the amount of the fee.
G.
Should the Township of Branchburg 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 (C.40:55D-8.6).
H.
Except as provided in Section 14-5.A.3) hereinabove, fifty percent
(50%) of the initially calculated development fee shall be collected
at the time of issuance of the Construction 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 the time of issuance of the Construction
Permit and that determined at the time of issuance of the Certificate
of Occupancy.
I.
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 Branchburg.
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, R.S. 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 non-residential 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
Branchburg. 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, R.S.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.
[Added 9-14-2020 by Ord.
No. 2020-1388]
A.
There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Township of Branchburg for the purpose of depositing development fees
collected from residential and non-residential 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 a fraction of an affordable
unit, where permitted by Ordinance or by Agreement with the Township
of Branchburg;
2.
Funds contributed by developers to make ten percent (10%) of the
adaptable entrances in a townhouse or other multistory attached dwelling
unit 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 Branchburg's affordable
housing program.
C.
In the event of a failure by the Township of Branchburg 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 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 Branchburg, or, if not practicable, then within
the County or the Housing Region.
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 non-compliant condition(s), and upon
a finding of continuing and deliberate non-compliance, determine to
authorize LGS to direct the expenditure of funds in the Trust Fund
or impose such other remedies as may be reasonable and appropriate
to the circumstances.
D.
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
[Added 9-14-2020 by Ord.
No. 2020-1388]
A.
The expenditure of funds shall conform to a Spending Plan approved
by the Court. Funds deposited in the Affordable Housing Trust Fund
may be used for any activity to address the Township of Branchburg'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 non-residential 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.
Funds shall not be expended to reimburse the Township of Branchburg
for past housing activities.
C.
At least 30 percent 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 very low-income households earning
30 percent or less of the regional median household income by household
size for Housing Region 3, in which Branchburg is located.
1.
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.
Affordability assistance to households earning 30 percent or less
of the regional median household income by household size 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 percent
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.
Payments in lieu of constructing affordable housing units on site,
if permitted by Ordinance or by Agreement with the Township of Branchburg,
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
D.
The Township of Branchburg 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.
No more than 20 percent 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.
In the case of a rehabilitation program, the administrative costs
of the rehabilitation program shall be included as part of the 20
percent of collected development fees that may be expended on administration.
2.
Administrative funds may be used for income qualification of households,
monitoring the turnover of sale and rental units, and compliance with
the Court's 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.
[Added 9-14-2020 by Ord.
No. 2020-1388]
The Township of Branchburg shall provide annual reporting of
Affordable Housing Trust Fund activity to the State of New Jersey,
Department of Community Affairs, Council on Affordable Housing or
Local Government Services or other entity designated by the State
of New Jersey, with a copy provided to Fair Share Housing Center and
posted on the municipal website, using forms developed for this purpose
by the New Jersey Department of Community Affairs, Council on Affordable
Housing or Local Government Services. The reporting shall include
an accounting of all Affordable Housing Trust Fund activity, including
the sources and amounts of funds collected and the amounts and purposes
for which any funds have been expended. Such reporting shall include
an accounting of development fees collected from residential and non-residential
developers, payments in lieu of constructing affordable units on site
(if permitted by Ordinance or by Agreement with the Township), funds
from the sale of units with extinguished controls, barrier free escrow
funds, rental income from Township owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Branchburg's affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the Spending Plan approved by the Court.
[Added 9-14-2020 by Ord.
No. 2020-1388]
A.
The ability for the Township of Branchburg to impose, collect and
expend development fees shall expire with the expiration of the repose
period covered by its Judgment of Compliance unless the Township of
Branchburg has first 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.
If the Township of Branchburg 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 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 (C. 52:27D-320).
C.
The Township of Branchburg shall not impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its Judgment of Compliance, nor shall
the Township of Branchburg retroactively impose a development fee
on such a development. The Township of Branchburg also shall not expend
any of its collected development fees after the expiration of its
Judgment of Compliance.
