The following Schedule of Fees is established
for the various applications for development and other matters which
are the subject of this chapter:
A.
Variances.
[Amended 12-28-2004 by Ord. No. 22-2004; 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009; 4-9-2019 by Ord. No. 03-2019]
(1)
For proceedings governed by N.J.S.A. 40:55D-70a: $500.
(2)
For proceedings governed by N.J.S.A. 40:55D-70b: $350.
(5)
For proceedings governed by N.J.S.A. 40:55D-34: $500.
(7)
Where subdivision, site plan review or conditional
use proceedings are required, the above stated fees shall be in addition
to those fees required for subdivision, site plan review or conditional
use permits.
(8)
In order to qualify for the lower fees established
for residential applications hereinabove, an application must be exclusively
residential in character and can be only for a single use on the lot.
Any application not complying with each of these conditions shall
fall under the higher fee schedule.
B.
Subdivisions.
[Amended 12-28-2004 by Ord. No. 22-2004; 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009; 4-9-2019 by Ord. No. 03-2019]
(1)
Minor subdivision: $750, plus $250 per lot.
(3)
Where a subdivision includes other zoning or land
use relief, these fees shall be cumulative and shall not exclude the
paying of the fees set forth elsewhere for variances, site plan review,
conditional use approval or any other land use relief.
C.
Site plans.
(1)
Minor site plan: $250.
[Amended 2-28-2004 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009]
(2)
Major site plan.
[Amended 4-9-2019 by Ord. No. 03-2019]
(a)
Conceptual review: 10% of the preliminary fee
(to be applied to preliminary fee at time of preliminary submission).
(b)
Preliminary approval: $1,000, plus $20 per 100
square feet of proposed building floor area or part thereof; or $25
per dwelling unit.
(c)
Final approval: $500, plus $10 per 100 square
feet of proposed building floor area or part thereof; or $15 per dwelling
unit.
D.
Conditional use applications. Applications for conditional
use shall be subject to payment of a fee in the amount of $750.
[Amended 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009; 4-9-2019 by Ord. No. 03-2019]
E.
Zone changes. Applications or requests to consider
a change in the Zoning Ordinance[1] made either to the Planning Board or the Borough Council shall be subject to the payment of a fee of $1,200, plus an escrow deposit in the amount of $2,500 which shall be governed in accord with the provision of § 415-13.
[Amended 2-28-2006 by Ord. No. 04-2006; 1-27-2009 by Ord. No. 02-2009]
G.
Escrows.
[Amended 2-28-2006 by Ord. No. 04-2006; 4-9-2019 by Ord. No. 03-2019]
(1)
For engineering fees related to proposed site plan
excluding a site plan for one-family residential construction: $1,000
for the first acre of land or part thereof included within the site
development plan;
(2)
For engineering fees related to a proposed site plan
for one-family residential construction: $750.
[Amended 2-24-1998 by Ord. No. 3-98]
A.
Professional fees. The Chief Financial Officer shall
make all of the payments to professionals for services rendered to
the Borough of Totowa or approving authority for review of applications
for development, review and preparation of documents, inspection of
improvements or other purposes authorized under the Municipal Land
Use Law.[1] Such fees or charges shall be based upon a schedule established
by resolution. The application review and inspection charges shall
be limited only to professional charges for review of applications,
review and preparation of documents and inspections of developments
under construction and review by outside consultants when an application
is of a nature beyond the scope of the expertise of the professionals
normally utilized by the municipality. The only costs that shall be
added to any such charges shall be actual out-of-pocket expenses of
any such professionals or consultants, including normal and typical
expenses incurred in processing applications and inspecting improvements.
The Borough or approving authority shall not bill the applicant or
charge any escrow account or deposit authorized below for any municipal,
clerical or administrative functions, overhead expenses, meeting room
charges or any other municipal costs and expenses, except as provided
for in this section, nor shall a municipal professional add any such
charges to his bill. If the salary, staff support and overhead for
a municipal professional are provided by the Borough, the charge shall
not exceed 200% of the sum of the products resulting from multiplying
the hourly base salary, which shall be established annually by ordinance,
of each of the professionals by the number of hours spent by the respective
professional upon review of the application for development or inspection
of the developer's improvements, as the case may be. For other professionals,
the charge shall be at the same rate as all other work of the same
nature by the professional for the municipality when fees are not
reimbursed or otherwise imposed on applicants or developers.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et. seq.
B.
Escrows.
(1)
A deposit toward anticipated municipal expenses for
the aforesaid professional services shall be required, which deposit
shall be placed in an escrow account in accordance with the provisions
of N.J.S.A. 40:55D-53.1. The amount of the deposit required shall
be reasonable in regard to the scale and complexity of the development.
The amount of the initial deposit required shall be as follows:
(a)
For engineering fees related to a proposed site
plan excluding a site plan for one-family residential construction:
[1]
Seven hundred fifty dollars for the first acre
of land or part thereof included within the site development plan;
[2]
An additional sum computed at the rate of $100
per acre for each acre of land, or part thereof, in excess of one
acre;
[3]
Two hundred fifty dollars to review a soil movement application under Chapter 336, Soil Removal and Grading, of the Code of the Borough of Totowa for movement of up to 350 cubic yards of soil, plus $0.25 per yard in excess of 350 cubic yards;
[4]
An additional sum computed at the rate of $5
per 100 square feet for the first 5,000 square feet of the building's
gross floor area, or part thereof, included within the site development
plan;
[5]
An additional sum computed at the rate of $3
per 100 square feet of the building gross floor area in excess of
5,000 square feet;
[6]
An additional sum required by the Borough stormwater
drainage provisions, if applicable;
[7]
An additional sum as may be required by the
reviewing Board with regard to the Borough floodplain development
provisions, if applicable;
[8]
An additional sum as may be required by the
reviewing Board with regard to the Borough's landscaping and shade
trees provision, if applicable.
(b)
For engineering fees related to a proposed site
plan for one-family residential construction:
[1]
Five hundred dollars;
[2]
Two hundred fifty dollars to review a soil movement application under Chapter 336, Soil Removal and Grading, of the Code of the Borough of Totowa for movement of up to 350 cubic yards of soil, plus $0.25 per each cubic yard in excess of 350 yards;
(c)
For engineering fees related to proposed major
subdivision.
[1]
Preliminary major subdivision approval:
[a]
One thousand dollars, plus $250
per proposed lot in excess of four lots and up to 20 lots;
[b]
One hundred dollars per proposed
lot in excess of 20 lots;
[c]
Two hundred fifty dollars to review
a soil movement application under the General Ordinances for movement
up to 350 cubic yards of soil plus $0.25 per each cubic yard in excess
of 350 cubic yards;
[3]
Minor subdivision:
[a]
Five hundred dollars for up to
and including three proposed lots that qualify as a minor subdivision;
[b]
Two hundred fifty dollars to review
a soil movement application under General Ordinances for movement
of up to 350 cubic yards of soil, plus $0.25 per each cubic yard in
excess of 350 cubic yards;
(2)
Deposits for inspection fees shall be established
in accordance with subsection h of N.J.S.A. 40:55D-53.
C.
Vouchers. Each payment charged to the deposit for
review of applications, review and preparation of documents and inspection
of improvements shall be pursuant to a voucher from the professional,
which voucher shall identify the personnel performing the service
and, for each date the services performed, the hours spent to one-quarter-hour
increments, the hourly rate and the expenses incurred. All professionals
shall submit vouchers to the Chief Financial Officer of the Borough
on a monthly basis in accordance with schedules and procedures established
by the Chief Financial Officer. If the services are provided by a
Borough employee, the Borough employee shall prepare and submit to
the Chief Financial Officer a statement containing the same information
required on a voucher, on a monthly basis. The professional shall
send an informational copy of all vouchers or statements submitted
to the Chief Financial Officer simultaneously to the applicant. The
Chief Financial Officer shall prepare and send to the applicant a
statement which shall include an accounting of funds listing all deposits,
interest earnings, disbursement and the cumulative balance of the
escrow account. This information shall be provided on a quarterly
basis, if monthly charges are $1,000 or less, or on a monthly basis,
if monthly charges exceed $1,000. If an escrow account or deposit
contains insufficient funds to enable the Borough or approving authority
to perform required application reviews or improvement inspections,
the Chief Financial Officer shall provide the applicant with a notice
of insufficient escrow or deposit balance. In order for work to continue
on the development or the application, the applicant shall, within
a reasonable time period, post a deposit to the account in an amount
to be agreed upon by the Borough or approving authority and the applicant.
In the interim, any required health and safety inspections shall be
made and charged back against the replenishment of funds.
D.
Closeout. The following closeout procedure shall apply
to all deposits and escrow accounts established under the provisions
of N.J.S.A. 40:55D-1 et seq. and shall commence after the approving
authority has granted final approval and signed the subdivision plat
or site plan, in the case of application review escrows and deposits,
or after the improvement inspection escrows and deposits. The applicant
shall send written notice by certified mail to the Chief Financial
Officer and the approving authority and to the relevant municipal
professional that the application or the improvements, as the case
may be, are completed. After receipt of such notice, the professional
shall render a final bill to the Chief Financial Officer within 30
days and shall send a copy simultaneously to the applicant. The Chief
Financial Officer shall render a written final accounting to the applicant
on the uses to which the deposit was put within 45 days of receipt
of the final bill. Any balances remaining in the deposit or escrow
account, including interest in accordance with N.J.S.A. 40:55D-53.1
shall be refunded to the developer along with the final accounting.
E.
Additional provisions. All professional charges for
review of an application for development, review and preparation of
documents or inspection of improvements shall be reasonable and necessary,
given the status and progress of the application or construction.
Review fees shall be charged only in connection with an application
for development presently pending before the approving authority or
upon review of compliance with conditions of approval or review of
requests for modification or amendment made by the applicant. A professional
shall not review items which are subject to approval by any state
governmental agency and not under municipal jurisdiction, except to
the extent consultation with a state agency is necessary due to the
effect of state approvals in the subdivision or site plan. Inspection
fees shall be charged only for actual work shown on a subdivision
or site plan or required by an approving resolution. Professionals
inspecting improvements under construction shall charge only for inspections
that are reasonably necessary to check the progress and quality of
the work, and such inspections shall be reasonably based on the approved
development plans and documents.
F.
Replacement of professional. If the municipality retains
a different professional or consultant in the place of the professional
originally responsible for development, application review or inspection
of improvements, the municipality or approving authority shall be
responsible for all time and expenses of the new professional to become
familiar with the application or the project, and the municipality
or approving authority shall not bill the applicant or charge the
deposit or the escrow account for any such services.
G.
Engineer's estimate; appeal. The cost of installation
of improvements for the purposes of N.J.S.A. 40:55D-53 shall be estimated
by the Municipal Engineer based on documented construction costs for
public improvements prevailing in the general area of the municipality.
The developer may appeal the Municipal Engineer's estimate to the
county construction board of appeals in accordance with the provisions
of N.J.S.A. 40:55D-53.
H.
Appeals.
(1)
An applicant shall notify, in writing, the governing
body with copies to the Chief Financial Officer, the approving authority
and the professional whenever the applicant disputes the charges made
by a professional for service rendered to the municipality in reviewing
applications for development, review and preparation of documents,
inspection of improvements or other charges. The governing body, or
its designee, shall, within a reasonable time period, attempt to remediate
any disputed charges. If the matter is not resolved to the satisfaction
of the applicant, the applicant may appeal to the County Construction
Board of Appeals any charge to an escrow account or a deposit by any
municipal professional or consultant or the cost of the installation
of improvements estimated by the Municipal Engineer. During the pendence
of any appeal, the municipality or approving authority shall continue
to process, hear and decide the application for development and to
inspect the development in the normal course and shall not withhold,
delay or deny reviews, inspections, signing of subdivision plats or
site plans, the reduction or the release of performance or maintenance
guaranties, the issuance of construction permits or certificates of
occupancy or any other approval or permit because an appeal has been
filed or is pending under this subsection. The Chief Financial Officer
of the municipality may pay charges out of the appropriate escrow
account or deposit for which an appeal has been filed. If a charge
is disallowed after payment, the chief financial officer of the municipality
shall reimburse the deposit or escrow account in the amount of any
such disallowed charge or refund the amount to the applicant. If a
charge is disallowed after payment to a professional or consultant
who is not an employee of the municipality, the professional or consultant
shall reimburse the municipality in the amount of any such disallowed
charge.
(2)
In the event that any of the provisions of the Land
Use Act referred to herein or incorporated herein is amended or in
any way modified the reference contained to such provisions of the
Land Use Act, for the purpose of the within subsection, shall be deemed
to refer to section as so amended or modified from time to time without
the need for any further amendment to the within subsection.
(3)
Any provisions of the within subsection which are
inconsistent with the provisions of the Land Use Act shall be deemed
to be subordinate to the provisions of the Land Use Act and the provisions
of the Land Use Act, with which any of the provisions of the within
subsection may be inconsistent, are deemed to be applicable as though
such provisions of the Land Use Act are fully incorporated herein
by reference.
[Added 9-10-2002 by Ord. No. 22-2002; amended 5-10-2016 by Ord. No.
02-2016; 11-13-2018 by Ord. No. 17-2018]
A.
Purpose. This section 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 to 38 (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 8.7). Fees collected
pursuant to this section shall be used for the purpose of providing
very-low, low and moderate income housing in accordance with a court-approved
spending plan.
B.
Court approval required.
(1)
This section shall not be effective unless and until approved by
the Superior Court in connection with the Borough of Totowa's
declaratory judgment action concerning its Third Round affordable
housing obligations, Docket No. PASL-2406-15.
(2)
The Borough of Totowa shall not spend development fees collected
pursuant to this section unless and until the Superior Court has approved
a spending plan for such fees.
C.
AFFORDABLE HOUSING DEVELOPMENT
COAH OR THE COUNCIL
COURT
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
Definitions. The following terms, as used in this section, 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 municipally sponsored construction project or a 100% affordable
housing development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act, or any successor agency.
The Superior Court of New Jersey, Law Division, Passaic County.
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 authorized by Holmdel Builder's Association v. Holmdel Borough,
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.
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 (N.J.S.A. 54:1-35a through 54:1-35c).
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.
D.
Residential development fees.
(1)
Imposition of fees.
(a)
Within the Borough of Totowa, 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 1% 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.
(b)
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 6% 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.
(2)
Eligible exactions, ineligible exactions and exemptions for residential
developments.
(a)
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 Borough
of Totowa, shall be exempt from the payment of development fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption of this section 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.
(c)
Owner-occupied residential structures demolished and replaced
as a result of a fire, flood, or natural disaster shall be exempt
from paying a development fee.
(d)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(e)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, which requires
the issuance of a certificate of occupancy. For example, when a single-family
home is converted to a two-family home or a single-family home is
converted to an apartment building. The development fee shall be calculated
on the increase in the equalized assessed value of the improved structure.
(f)
Development fees shall be imposed and collected when a certificate
of occupancy is issued for a new residential unit.
E.
Nonresidential development fees.
(1)
Imposition of fees.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, 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)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, 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 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 nonresidential development fee shall
be zero.
(2)
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(a)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to a 2.5% development fee, unless
otherwise exempted below.
(b)
The 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.
(c)
Nonresidential developments shall be exempt from the payment
of nonresidential 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.
(d)
A developer of a nonresidential development exempted from the
nonresidential 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 nonresidential development fee, in that event, within three
years after that event or after the issuance of the final certificate
of occupancy for the nonresidential development, whichever is later.
(e)
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 Totowa as a lien against the
real property of the owner.
F.
Collection procedures.
(1)
Upon the granting of a preliminary, final or other applicable approval
for a 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.
(2)
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 the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
(3)
The Construction Official responsible for the issuance of a construction
permit shall notify the Borough Tax Assessor of the issuance of the
first construction permit for a development which is subject to a
development fee.
(4)
Within 90 days of receipt of such notification, the Borough Tax Assessor
shall prepare an estimate of the equalized assessed value of the development
based on the plans filed.
(5)
The Construction Official responsible for the issuance of a final
certificate of occupancy shall notify the Borough Tax Assessor of
any and all requests for the scheduling of a final inspection on a
property which is subject to a development fee.
(6)
Within 10 business days of a request for the scheduling of a final
inspection, the Borough 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.
(7)
Should the Borough of Totowa 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 (N.J.S.A.
40:55D-8.6).
(8)
Except as provided in Subsection E(1)(c) hereinabove, 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.
(9)
Appeal of development fees.
(a)
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 Borough of Totowa. 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. Interestf earned on amounts escrowed shall be credited
to the prevailing party.
(b)
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 Borough of
Totowa. 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.
G.
Affordable housing trust fund.
(1)
There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Borough of Totowa for the purpose of depositing development fees collected
from residential and nonresidential developers and proceeds from the
sale of units with extinguished controls.
(2)
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(a)
Payments in lieu of on-site construction of a fraction of an
affordable unit, where permitted by ordinance or by agreement with
the Borough of Totowa;
(b)
Funds contributed by developers to make 10% of the adaptable
entrances in a townhouse or other multistory attached dwelling unit
development accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Totowa's affordable
housing program.
(3)
In the event of a failure by the Borough of Totowa 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 the expenditure of funds
on activities not approved by the court; 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 Borough of Totowa, or, if not practicable,
then within the County.
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 noncompliant condition(s), and upon
a finding of continuing and deliberate noncompliance, determine to
authorize LGS to direct the expenditure of funds in the Trust Fund.
The Court may also impose such other remedies as may be reasonable
and appropriate to the circumstances.
(4)
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
H.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved
by the Superior Court. Funds deposited in the Affordable Housing Trust
Fund may be used for any activity approved by the Court to address
the Borough of Totowa'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 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; and/or
any other activity permitted by the Court and specified in the approved
spending plan.
(2)
Funds shall not be expended to reimburse the Borough of Totowa for
past housing activities.
(3)
At least 30% of all development fees collected and interest earned
on such fees 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 the median income
for Housing Region 1, in which Totowa is located.
(a)
Affordability assistance programs may include downpayment 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.
(b)
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 specific programs
to be used for very-low-income affordability assistance shall be identified
and described within the spending plan.
(c)
Payments in lieu of constructing affordable housing units on
site, if permitted by ordinance or by agreement with the Borough of
Totowa, and funds from the sale of units with extinguished controls
shall be exempt from the affordability assistance requirement.
(4)
The Borough of Totowa 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.
(5)
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 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.
(a)
In the case of a rehabilitation program, the administrative
costs of the rehabilitation program shall be included as part of the
20% of collected development fees that may be expended on administration.
(b)
Administrative funds may be used for income qualification of
households, monitoring the turnover of sale and rental units, and
compliance with monitoring requirements. Legal or other fees related
to litigation opposing affordable housing sites or objecting to the
Council's regulations and/or actions are not eligible uses of
the Affordable Housing Trust Fund.
I.
Monitoring. The Borough of Totowa shall provide annual reporting
of Affordable Housing Trust Fund activity to the New Jersey Department
of Community Affairs, COAH or Local Government Services or other entity
designated by the State of New Jersey, with a copy provided to Fair
Share Housing Center using forms developed for this purpose by the
New Jersey Department of Community Affairs, COAH or Local Government
Services, or forms approved by the Special Master.
J.
Ongoing collection of fees.
(1)
The ability for the Borough of Totowa to impose, collect and expend
development fees shall be permitted through the expiration of the
repose period covered by its judgment of compliance and shall continue
thereafter so long as the Borough of Totowa has 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.
(2)
If the Borough of Totowa is not pursuing authorization to impose
and collect development fees after 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 (N.J.S.A.
52:27D-320).
(3)
After the expiration of the judgment of compliance, if the Borough
does not pursue or obtain continued authorization, the Borough of
Totowa shall not impose a residential development fee on a development
that receives preliminary or final site plan approval, retroactively
impose a development fee on such a development, or expend any of its
collected development fees.
