[Added 10-12-1993 by Ord. No. 93-30; amended 12-20-1993 by Ord. No. 93-33; 11-29-2004 by Ord. No. 2004-35; 9-15-2008 by Ord. No. 2008-21; 1-20-2009 by Ord. No.
2008-52; 3-18-2019 by Ord. No. 2019-11]
This article 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 (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 article shall be used for the purpose of providing
very-low, low- and moderate-income housing in accordance with a Court-approved
spending plan.
A.Â
This article shall not be effective unless and until approved by
the Superior Court in connection with the Township of West Windsor's
declaratory judgment action concerning its third round affordable
housing obligations.
B.Â
The Township of West Windsor shall not spend development fees collected
pursuant to this article unless and until the Superior Court has approved
a spending plan for such fees.
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 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 charged with the
administration of the Act.
The Superior Court of New Jersey, Law Division, Mercer 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 c).
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.Â
Imposed fees.
(1)Â
Within all districts, residential 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.
(2)Â
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.
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 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.Â
Eligible exactions, ineligible exactions and exemptions for residential
developments.
(1)Â
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 West Windsor, shall be exempt from the payment of development fees.
(2)Â
Developments that have received preliminary or final site plan
approval prior to the adoption of this article shall be exempt from
the payment of development fees, unless the developer seeks a substantial
change in the original approval. Where 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)Â
Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use or, except as provided in Subsection B(4), is demolished and replaced. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
(4)Â
Owners of residential structures that are demolished and replaced
as a result of a fire, flood or natural disaster and additions as
well as decks shall be exempt from paying a development fee.
(5)Â
Not-for-profit developers shall be exempt.
A.Â
Imposed fees.
(1)Â
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted,
shall pay a fee equal to 2.5% of the equalized assessed value of the
land and improvements, for all new non-residential construction on
an unimproved lot or lots.
(2)Â
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.
(3)Â
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,
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 zero.
B.Â
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(1)Â
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.
(2)Â
The fee of 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)Â
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.
(4)Â
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.
(5)Â
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 West Windsor Township as a lien against the
real property of the owner.
A.Â
Upon the granting of a preliminary, final or other applicable approval
for a development, the applicable approving authority or entity shall
notify or direct its staff to notify the Construction Official responsible
for the issuance of a building permit.
B.Â
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.
C.Â
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.Â
Within 90 days of receipt of such notification, the municipal Tax
Assessor, based on the plans filed, shall provide an estimate of the
equalized assessed value of the development.
E.Â
The Construction Official responsible for the issuance of a final
certificate of occupancy shall notify the local 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.Â
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.Â
Should the Township of West Windsor 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).
H.Â
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 time of issuance of the certificate of occupancy.
The developer shall be responsible for paying the difference between
the fee calculated at building permit and that determined at the issuance
of the certificate of occupancy. No certificate of occupancy shall
be issued to the developer until all remaining developer fees have
been paid in full.
I.Â
Appeal of development fees.
(1)Â
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 West Windsor Township. 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)Â
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 West Windsor Township.
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.Â
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.Â
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)Â
Payments in lieu of on-site construction of affordable units;
(2)Â
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached dwelling unit development
accessible;
(3)Â
Rental income from municipally operated units;
(4)Â
Repayments from affordable housing program loans;
(5)Â
Recaptured funds;
(6)Â
Proceeds from the sale of affordable units; and
(7)Â
Any other funds collected in connection with the Township of
West Windsor's affordable housing program.
C.Â
In the event of a failure by the Township of West Windsor 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 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 Township of West Windsor, or, if not practicable,
then within the County.
(1)Â
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.
D.Â
Interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
A.Â
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
West Windsor Township'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.
B.Â
Funds shall not be expended to reimburse West Windsor Township for
past housing activities.
C.Â
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 4, in which West Windsor is located.
(1)Â
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)Â
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.
(3)Â
Payments in lieu of constructing affordable housing units on
site and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
D.Â
West Windsor Township 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.Â
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.
(1)Â
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.
(2)Â
Administrative funds may be used for income qualification of
households, monitoring the turnover of sale and rental units, and
compliance with monitoring requirements.
(3)Â
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.
West Windsor Township shall provide annual reporting of Affordable
Housing Trust Fund activity to the New Jersey Department of Community
Affairs, COAH and Local Government Services or other entity designated
by the State of New Jersey, using forms developed for this purpose
by the New Jersey Department of Community Affairs, COAH or Local Government
Services.
A.Â
The ability of West Windsor Township 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 West Windsor Township 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.
B.Â
If the Township of West Windsor is not pursuing authorization to
impose and collect development fees after the expiration of its judgment
of compliance and repose, 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).
C.Â
After the expiration of the judgment of compliance and repose, if
the Township does not pursue or obtain continued authorization, West
Windsor Township 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.