[HISTORY: Adopted by the Township Committee of the Township of Plainsboro 12-30-1985 by Ord. No. 0-85-27. Amended in entirety 12-14-1985 by Ord. No. 0-94-19. Amendments noted where applicable.]
Article I Affordable Housing Development Fees
The New Jersey Supreme Court, in Holmdel Builders v. Holmdel, Township, 121 N.J. 550 (1990), determined that mandatory development fees are both statutorily and constitutionally permissible. The Court further anticipated that the Council would promulgate appropriate development fee rules specifying, among other things, the standards for these development fees. The purpose of this section is to provide such rules pursuant to N.J.A.C. 5:92-18 et seq.
The Township Committee finds and declares that the creation and preservation of affordable housing in the township serves the public interest. Maintaining and improving a stock of sound affordable housing requires affirmative steps by local government working cooperatively with public bodies at all levels and with the private sector. The purpose of this section is to create in the Township of Plainsboro a trust fund from payment of development fees to assist in the marshaling of public and private moneys dedicated to affordable housing projects and programs.
As used herein the following terms shall have the following definitions:
"Affordable housing" means any housing unit with an acquisition price or rent level not exceeding the maximum resale or rent level for low and moderate income housing as set forth in N.J.A.C. 5:92-1.2.
"Council" means the New Jersey Council on Affordable Housing established under the Fair Housing Act of 1985, and which has primary jurisdiction for the administration of low and moderate housing delegations in accordance with sound regional planning considerations in this state.
"Development fees" mean money paid by an individual, person, partnership, association, company, or corporation for the improvement of property as permitted in N.J.A.C. 5:92-18 et seq.
"Equalized assessed value" means the value of a property determined by the municipal tax assessor through a process designed to ensure that all property in the municipality is assessed at the same assessment ratio and ratios required by law. Estimates at the time of building permit may be obtained by the tax assessor utilizing estimates for construction cost. Final equalized assessed value will be determined at project completion by the municipal tax assessor.
The Township will not collect residential development fees except as provided in Subsection A(2).
The Township may allow developers of sites zoned for inclusionary development to pay a fee in lieu of building low and moderate income units provided the Council determines the Township's housing element and fair share plan provides a realistic opportunity for addressing the Township's fair share obligation. The fee may equal the cost of subsidizing the low and moderate income units that are replaced by the development fee. For example, an inclusionary development may include a 20% set-aside, no set aside, and a fee that is the equivalent of a 20% set-aside or a combination of a fee and set-aside that is the equivalent of a 20% set-aside. All such arrangements must first be approved by the Council on Affordable Housing.
The Township may collect fees exceeding those permitted in this section provided the Township enters into agreements with developers that offer a financial incentive for paying higher fees. The financial incentive may be in the form of a tax abatement. No agreement may provide for a voluntary development fee without also providing for a comparable off-setting incentive. All agreements are subject to a Council approval.
Nonresidential development fees shall be a maximum of 2% of the equalized assessed value for nonresidential development. The following zoning districts are subject to the nonresidential development fees: General Business GB, Neighborhood Business Zone NB, OB-1 Office Business Zone, I-100 Limited Industrial Zone, S-R Service-Residential Zone, PCD Planned Unit Development Zone, PMUD Planned Unit Development, and Village Center Zone VC.
[Amended 10-13-2004 by Ord. No. 0-04-19; 2-9-2005 by Ord. No. 0-05-02; 12-27-2007 by Ord. No. 0-07-26]
The Township may collect fees exceeding those permitted in this section provided they enter into agreements with developers that offer a financial incentive for paying higher fees. Such agreements may include, but are not limited to, a tax abatement, increased commercial/industrial square footage, increased commercial/industrial lot coverage and/or increased commercial/industrial impervious coverage in return for an increased development fee. The development fee negotiated must, bear a reasonable relationship to the additional commercial-industrial consideration to be received. All agreements are subject to approval by the Council.
Except as provided for in § 57-3 above, inclusionary developments shall be exempt from development fees.
Development fees shall be collected when an existing structure is expanded or undergoes a more intense use. The development fee that may be collected shall be calculated on the increase in the equalized value of the improved structure.
The township shall not reduce densities from preexisting levels and then require developers to pay development fees in exchange for an increased density.
Developments that have received preliminary or final approval prior to the imposition of a development fee shall be exempt from development fees unless the developer seeks a substantial change in the approval.
The township exempts the following types of development from the imposition of development fees:
The township shall collect 50% of the fee on any specific development prior to and as a condition of the issuance of the building permit therefor. The remaining portion shall be collected prior to and as a condition of the issuance of the certificate of occupancy. After an issuance of a building permit, the construction official shall refer the plans for the development to the Tax Assessor. The Tax Assessor shall certify to the construction official the final equalized assessed value in advance of the issuance of a certificate of occupancy by the construction official. The remaining portion of the development fee shall be adjusted to reflect any change in the estimated equalized assessed value so that the total of the two payments shall equal 100% of the total development fee based upon the final equalized assessed value.
All development fees shall be deposited with the Chief Financial Officer of the township in a separate designated interest-bearing housing trust fund. The development fees placed in the housing trust fund shall be deemed "dedicated revenues" as such term is defined in N.J.S.A. 40A:4-36. In establishing the housing trust fund, the township shall provide whatever express written authorization that may be required by the bank utilized by the township in order to permit the Council to direct the disbursement of development fees pursuant to § 57-8 of this article.
The township shall use revenues collected from development fees for any activity approved by the Council for addressing the township's fair share obligation. Such activities include, but are not limited to, rehabilitation, new construction, regional contribution agreements, purchase of land for low and moderate income housing, improvement of land to be used for low and moderate income housing, extension and/or improvements of roads and infrastructure to low and moderate income housing sites, assistance designed to render units to be more affordable and administration of the implementation of the housing element.
Funds shall not be expended to reimburse the township for past housing activities.
At least 30% of the revenues collected from development fees shall be devoted to render units more affordable. Examples of such activities include, but are not limited to, down payment assistance, low interest loans, and rental assistance. This requirement may be waived in whole or in part when the township demonstrates to the Council the ability to address the requirement of affordability assistance from another source.
No more than 20% of the revenues collected from development fees shall be expended on administration, but not limited to, salaries and benefits for township employees or consultant fees necessary to develop or implement a rehabilitation program, a new construction program, a regional contribution agreement, a housing element, and an affirmative marketing program. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with the Council's monitoring requirements.
The township shall submit to the Council a spending plan for the development fees collected by it prior to the expiration of its substantive certification period. Plans to spend development fees shall consist of the following information:
A projection of revenues anticipated from imposing fees on development, based on historic activity;
A description of the administrative mechanism that the township will use to collect and distribute revenues;
A description of the anticipated use of all development fees;
A schedule for the creation or rehabilitation of housing units;
In the event the township envisions being responsible for public sector or non-profit construction of housing, a pro-forma statement of the anticipated costs and revenues associated with the development; and
The manner through which the township will address any expected or unexpected shortfall if the anticipated revenues from development fees are not sufficient to implement the plan.
In the event that any of the conditions set forth in Subsection B below occur, the Council shall be authorized, on behalf of the township, to direct the manner in which all development fees collected pursuant to this article shall be expended. Should any such condition occur, such revenues shall immediately become available for expenditure at the direction of the Council upon the Township Clerk's receipt of written notification from the Council that such a condition has occurred. In furtherance of the foregoing, the township shall, in establishing a bank account pursuant to § 57-6 of this article, ensure that the township has provided whatever express written authorization which may be required by the bank to permit the Council to direct disbursement of such revenues from the account following the delivery to the bank of the aforementioned written notification provided by the Council to the Township Clerk.
Occurrence of the following may result in the Council taking an action pursuant to Subsection A above:
Failure to submit a spending plan pursuant to § 57-7 above within the time limits imposed by the Council;
Failure to meet deadlines for information required by the Council in its review of this article, the township's housing element, or spending plan;
Failure to address the Council's conditions for approval of a plan to spend development fees within the deadlines imposed by the Council;
Failure to address the Council's conditions for substantive certification within the deadlines imposed by the Council;
Failure to submit accurate monitoring reports within the time limits imposed by the Council;
Failure to implement the spending plan for development fees within the time imposed by the Council, or within reasonable extensions granted by the Council;
Expenditure of development fees on activities not permitted by the Council;
Revocation of the township's substantive certification; or
Other good cause demonstrating that the revenues are not being used for the intended purposes.
The township's ability to collect development fees shall expire with substantive certification unless the township has filed an adopted housing element with the Council, petitioned for substantive certification, and received the Council's approval of its development fee ordinance.
The township shall complete and return all monitoring forms related to the collection of fees, expenditure of revenues, and implementation of the plans certified by the Council or approved by the Court. Quarterly financial reports and annual program implementation and auditing reports shall be completed on forms designed by the Council.
If any part of this article of Chapter 57 of the Code of the Township of Plainsboro shall be held invalid, the holding shall not affect the validity of the remaining parts of this article. If any part of this article is held invalid in one or more of their applications, the rules shall remain in effect in all valid applications that are severable from the invalid application.