However, if the zoning of a site has changed during the immediate two years prior to the filing of the "d" variance application, then the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two year time period preceding the filing of the variance application.

Example: If an approval allows four units to be constructed on a site that was zones for two units, the fees will 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 that zoning on the site has not changed during the two-year period preceding the filing of such a variance application.

In any case, these fees shall not apply to developments exempt from the collection of development fees in accordance with the provisions specified in subsection § 220-14D(3) of this section, hereinbelow.

All affordable housing developments and/or developments that produce affordable units shall be exempt from the payment of development fees.

Developments that have received preliminary or final site plan approval prior to the adoption of this section, and any preceding section 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.

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 purposes of this section, "market value" shall mean the equalized assessed value of the existing improvement as established by the Borough 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 Borough 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 alternation affects the external dimensions of the structure. The term does not, however, include either:

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.

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.

Federal, state, county, and local governments shall be exempted from paying a development fee.

Homes replaced as a result of a natural disaster such as a fire or a 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.)

In addition to the construction of new principal and/or accessory buildings, development fees shall be imposed and collected for the construction of additions or expansions to existing buildings, for the change or conversion of an existing building to accommodate a more intense use, and/or for the demolition and replacement of an existing building, provided that:

The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to the 2.5% development fee, unless otherwise exempted below.

The 2.5% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing building footprint, reconstruction, renovations, and repairs.

Nonresidential projects that have received a certificate of occupancy or general development plan approval or have entered into a developer's agreement or a redevelopment agreement, all prior to July 17, 2008, (the effective date of P.L. 2008, c. 46), shall be exempt from the payment of nonresidential development fees, provided that an affordable housing fee of at 1% of the equalized assessed value of the improvements is included in the development plan, developer's agreement or redevelopment agreement.

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-81 through 8.7), as specified in the Form N-RDF "State of New Jersey Non-Residential Development Certification/Exemption." Any exemption claimed by a developer shall be substantiated by that developer.

All nonresidential construction of buildings or structures on property used by houses of worship, and property used for educational purposes which is tax-exempt pursuant to R.S. 54:4-3.6, provided that the property continues to maintain its tax-exempt status under that statute for a period of at least three years from the date of the certificate of occupancy.

In addition, the following shall be exempt from the imposition of a nonresidential fee:

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 set forth in this subsection no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.

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 Alpine as a lien against the real property of the owner.

Federal, state, county, and local governments of nonresidential development shall be exempted from paying a development fee.

The Planning Board Secretary of Alpine Borough shall notify the Alpine Borough Construction Code Official whenever either a preliminary, final or other applicable approval is granted to any development which is subject to the collection of a development fee.

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," which is to be completed by the developer as per the instructions provided.

Borough Construction Official responsible for the issuance of a building permit shall notify the Borough Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.

Within 90 days of receipt of that notice, the Borough Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development. The equalized assessed value and the required development fee shall be estimated by the Borough Tax Assessor prior to the issuance of the construction permit, with the understanding that the estimate of the equalized assessed value is not intended to establish the equalized assessed value for tax purposes.

Regardless of the time of collection of the development fee, the fee shall be based upon the percentage that applies on the date that the construction permit is issued.

The Construction Code Official shall forward all collected development fees to Alpine Borough's Chief Financial Officer who shall deposit such fees into the established Housing Trust Fund.

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 Alpine. 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.

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 Alpine. 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.

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 Alpine;

Developer contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached dwelling unit development accessible;

Rental income from municipally operated units;

Repayments from affordable housing program loans;

Recapture funds;

Affordable housing enforcement fines and application fees;

Proceeds from the sale of affordable units; and

Any other funds collected in connection with the Borough of Alpine's affordable housing program.

The Borough of Alpine shall provide the court with written authorization, in the form of a three-party escrow agreement between the municipality, the bank with which the affordable housing fees are deposited by the Borough and maintained by said bank, and a court approved entity to permit the court to direct the disbursement of the funds as provided for in N.J.A.C. 5:93-8.19 and 8.20.

All interest accrued in the Affordable Housing Trust Fund shall only be used to fund eligible affordable housing activities approved by the court or a successor agency to COAH.

In the event of a failure by the Borough of Alpine 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 Borough of Alpine, 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 noncompliant condition(s), and upon a finding of continuing and deliberate noncompliance, determine to authorize LGS to direct the expenditure of funds in the Affordable Housing Trust Fund or impose such other remedies as may be reasonable and appropriate to the circumstances.

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% or less of the regional median income by household size for Housing Region 1, in which the Borough of Alpine is located.

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.

Affordability assistance for very-low-income households earning 30% or less of the regional median income by household size may include buying down the cost of low- or moderate-income units in the Borough's Fair Share Plan to make them affordable to very-low-income 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.

Payments in lieu of constructing affordable units on site, if permitted by ordinance or by agreement with the Borough of Alpine, and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.

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.

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 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).

The Borough of Alpine 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 Borough of Alpine retroactively impose a development fee on such a development.

The Borough of Alpine shall not expend any of its collected development fees after the expiration of its substantive certification or judgment of compliance.