Ewing City Zoning Code
ARTICLE X
Fees; Guarantees and Inspections
§ 215-100 Fees.
§ 215-101 Guarantees and inspections.
A.
Performance guarantee estimate.
[Amended by Ord. No. 1992-1]
(1)
Certification of completion of improvements.
[Amended 4-24-2018 by Ord. No. 18-07]
(a)
No final application for development (whether for an entire tract or a section thereof) shall be approved by the Board until the satisfactory completion and performance of all required on-tract improvements have been certified to the Board by the Township Engineer unless the owner shall have filed with the Township a performance guarantee assuring the installation of on-tract improvements on or before an agreed date as hereinafter provided.
(b)
Required improvements shall include those improvements to be dedicated to the public and that have not yet been installed as shown on the approved plans or plat, including streets, pavement, gutters, curbs, sidewalks, streetlighting, street trees, surveyor's monuments, as shown on the final map and required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.), water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space and any grading necessitated by the preceding improvements.
(c)
The Board may also require a performance guarantee to include, within an approved phase or section of a development, privately owned perimeter buffer landscaping, as required by this Code or otherwise imposed as a condition of approval.
(2)
It is the intention of the Township Council that residents living in each new section of a development be provided with a lot and/or dwelling unit and tract area that is as complete as possible with respect to tract and individual lot and/or dwelling unit improvements. In order to accomplish this objective, and except as hereafter provided, all remaining improvements shall be completed as to each category set forth in the performance guarantee to a percentage extent equal to the percent of lots and/or dwelling units which have been conveyed in any manner.
(3)
A performance guarantee estimate shall be prepared by the applicant's engineer and submitted to the Township Engineer for review and approval, setting forth all requirements for improvements, as fixed by the Board, and their estimated cost.
B.
Approval by Township Attorney.
(1)
The owner shall present two copies of the performance guarantee, in an amount equal to 120% of the approved performance guarantee estimate when secured by a bond or in an amount equal to 100% of the approved performance guarantee when secured by cash or irrevocable letter of credit, for approval as to form and execution by the Township Attorney.
(2)
The Township Attorney shall notify the Secretary of the Board prior to the meeting that the performance guarantee is properly executed and can be added to the agenda.
C.
Bonding and cash requirements.
(1)
The performance guarantee shall be made payable and deposited to Ewing Township and shall be in the form of cash, irrevocable letter of credit or certified check or a performance bond in which the owner shall be principal, the bond to be provided by an acceptable surety company licensed to do business in the State of New Jersey. The Township shall issue its receipt for such deposits and shall cause the same to be deposited in the name of the Township to be retained as security for completion of all requirements and to be returned to the owner on completion of all required work or, in the event of default on part of the owner, to be used by the Township to pay the cost and expense of obtaining completion of all requirements.
(2)
Ten percent of the amount of the approved performance guarantee shall be deposited by the owner in cash with the Township. The remaining 90% may be in cash, irrevocable letter of credit or surety bond. In the event of default, the ten-percent fund herein mentioned shall be first applied to the completion of the requirements, and the cash or surety bond shall thereafter be resorted to, if necessary, for the completion of the requirements. The cash or surety bond shall recite the foregoing provisions.
D.
Inspection and tests.
[Amended by Ord. No. 1982-2; Ord. No. 1991-11]
(1)
All site improvements and utility installations for both site plans and subdivisions shall be inspected during the time of their installation under the supervision of the Township Engineer, or other designated Township official, to ensure satisfactory completion. The cost of the inspection shall be the responsibility of the owner, who shall pay to the Township Treasurer a sum equal to 5% of the amount of the estimated costs of the required improvements for payment of the inspection costs; 10% where the amount of the estimated costs is from zero to $25,000; 7% where the amount of the estimated costs is from $25,001 to $50,000; and 5% where the estimated costs exceed $50,001.
(a)
The escrow associated with inspection fees shall be replenished whenever the original amount is reduced by charges or anticipated charges against the account to 25% or less of the original amount. The Engineer shall notify the applicant or owner to replenish the escrow, and the applicant or owner shall, upon request of the Engineer, deposit up to 100% of the original escrow account.
(2)
In no case shall any paving work be done without permission from the Township Engineer. At least two working days' notice shall be given to the Township Engineer prior to any construction so that he/she or a qualified representative may be present at the time the work is to be done.
(3)
Streets should not be paved with a wearing course until all heavy construction is completed. Shade trees shall not be planted until all grading and earthmoving is completed. The seeding of grass and the placing of surveyor's monuments shall be among the last operations.
(4)
The Township Engineer's office shall be notified prior to each of the following phases of work so that he/she or a qualified representative may inspect the work:
(5)
Any improvement installed contrary to the plan or plat approval by the Township shall constitute just cause to void the municipal approval.
(6)
Any improvement installed without notice for inspection pursuant to § 215-101D(4) hereinabove shall constitute just cause for:
(a)
Removal of the uninspected improvement;
(b)
The payment by the developer of any costs for material testing;
(c)
The restoration by the developer of any improvements disturbed during any material testing; and/or
(d)
The issuance of a stop-work order by the Township Engineer pending the resolution of any dispute.
(7)
Inspection by the Township of the installation of improvements and utilities shall not operate to subject the Township to liability for claims, suits or liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter; it being recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the owner and his contractor, if any.
(8)
Upon the completion or substantial completion of all required appurtenant utility improvements, and the connection of same to the public system, the obligor may notify the Township Council, in writing, by certified mail in care of the Township Clerk, of the completion or substantial completion of the improvements and shall simultaneously send a certified copy thereof to the Township Engineer. Within 10 working days of receipt of the notice, the Township Engineer shall inspect all the improvements of which such notice has been given and file a detailed report, in writing, with the Township Council, indicating either approval, partial approval or rejection of such improvements with a statement of the reasons for any rejection. The costs of the improvements as approved or rejected shall be set forth.
E.
Release. The Township Council shall approve, partially approve or reject the improvements, on the basis of the report from the Township Engineer, and shall notify the obligor, in writing, by certified mail, of the Engineer's report and the action of the Township Council not later than 65 days after the receipt of the notice of the obligor of the completion or substantial completion of the improvements. Failure of the Township Council to send or provide such notification to the obligor within the 65 days shall be deemed to constitute approval of the improvements, and the obligor and the surety, if any, shall be released from all liability pursuant to the performance guarantee for such improvements.
(1)
Where partial approval is granted, the obligor shall be released from all liability pursuant to the performance guarantee for such improvements, except for that portion adequately sufficient to secure provision of the improvements not yet approved, provided that 30% of the performance guarantee posted may be retained to ensure the completion of all improvements and that the 30% may be applied against all improvements, regardless of when completed.
(2)
If any portion of the required improvements is rejected, the obligor shall complete such improvements and, upon completion, shall notify the Township Council as specified in § 215-101D(8), and the same procedures shall be followed as in the first instance.
(3)
Maintenance guarantees.
[Added 4-24-2018 by Ord. No. 18-07]
(a)
The developer shall post with the Township, prior to the release of a performance guarantee required pursuant to § 215-101A(1)(a), § 215-101A(1)(c), or both, a maintenance guarantee in an amount not to exceed 15% of the cost of installation of the improvements which are being released.
(b)
The developer shall post with the Township, upon the inspection and issuance of final approval of the following private site improvements by the Township Engineer, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any, which cost shall be determined according to the method of calculation set forth in section 15 of P.L. 1991, c. 256 (C. 40:55D-53.4).
(c)
The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the established term.
F.
Conditions and acceptance of improvements. The approval of any application for development by the Township shall in no way be construed as acceptance of any street or drainage system, or any other improvement, nor shall such approval obligate the Township in any way to exercise jurisdiction over such street or drainage system or other improvement. No improvement shall be accepted by the governing body unless and until all of the following conditions have been met:
(1)
The Township Engineer shall have certified, in writing, that the improvements are completed and that they comply with the requirements of this chapter;
(2)
The final application for development shall have been approved by the Board;
(3)
The owner shall have filed with the Township Council a maintenance guarantee in accordance with this section; and
[Amended 4-24-2018 by Ord. No. 18-07]
(4)
An as-built plan and profiles of all utilities, roads and physical features (three black-and-white prints plus a Mylar copy to be sent to the Township Engineer), with certification signed and sealed by a New Jersey licensed professional engineer as to the actual construction as approved by the Township Engineer, shall be provided.
(5)
As a condition precedent to the issuance of a temporary or permanent certificate of occupancy, pursuant to the Uniform Construction Code of New Jersey, the developer's engineer shall submit an as-built lot grading plan to the Construction Official.
G.
Safety and stabilization guarantee.
[Added 4-24-2018 by Ord. No. 18-07]
(1)
A developer shall also furnish to the Township a safety and stabilization guarantee in favor of the Township. The developer shall have the option to furnish the safety and stabilization guarantee as either a separate guarantee or as a line item of the performance guarantee. The safety and stabilization guarantee shall be available to the Township solely for the purpose of returning property that has been disturbed to a safe and stable condition or otherwise implementing measures to protect the public from access to an unsafe or unstable condition, only in the circumstance that:
(a)
Site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure; and
(b)
Work has not recommenced within 30 days following the provision of written notice by the Township to the developer of the Township's intent to claim payment under the guarantee. The Township shall not provide notice of its intent to claim payment under a safety and stabilization guarantee until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. The Township shall provide written notice to the developer by certified mail or other form of delivery providing evidence of receipt.
(2)
Safety and stabilization guarantee amounts.
(a)
The amount of a safety and stabilization guarantee for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000.
(b)
The amount of a safety and stabilization guarantee for a development with bonded improvements exceeding $100,000 shall be calculated as a percentage of the bonded improvement costs of the development or phase of development as follows:
(3)
Releases of safety and stabilization guarantees.
(a)
The Township shall release a separate safety and stabilization guarantee to the developer upon the developer's furnishing of a performance guarantee which includes a line item for safety and stabilization in the amount required under this section.
(b)
The Township shall release a safety and stabilization guarantee upon the Township Engineer's determination that the development of the project site has reached a point that the improvements installed are adequate to avoid any potential threat to public safety.
§ 215-102 Affordable housing development fees.
[Added 5-8-2001 by Ord. No. 01-15; amended 11-25-2008 by Ord. No. 08-22; 8-14-2018 by Ord. No. 18-19]
§ 215-102.1 Purpose.
This § 215-102 et seq. 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 Nonresidential Development Fee Act (C. 40:55D-8.1 through 8.7). Fees collected pursuant to this § 215-102 et seq. shall be used for the sole purpose of providing very-low- and moderate-income housing in accordance with a Court-approved spending plan.
§ 215-102.2 Basic requirements.
§ 215-102.3 Definitions.
The following terms, as used in this § 215-102 et seq., 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 municipal construction project or a 100% affordable housing development.
The New Jersey Council on Affordable Housing established under the Fair Housing Act.
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 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.
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).
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.
§ 215-102.4 Residential development fees.
A.
Imposition of fees.
(1)
Within the Township of Ewing, 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 1.5% 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 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.
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 Ewing, 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 § 215-102 et seq. 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)
Improvements or additions to existing one- and two-family dwellings on individual lots shall not be required to pay a development fee, 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)
Homes replaced as a result of a natural disaster (such as a fire or flood) shall be exempt from the payment of a development fee.
§ 215-102.5 Nonresidential development fees.
A.
Imposition of fees.
(1)
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.
(2)
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.
(3)
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 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 nonresidential development fee shall be zero.
B.
Eligible exactions, ineligible exactions and exemptions for nonresidential development.
(1)
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)
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.
(3)
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption". Any exemption claimed by a developer shall be substantiated by that developer.
(4)
A developer of a nonresidential development exempted from the nonresidential development fee pursuant to the Statewide Nonresidential 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)
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 Township of Ewing as a lien against the real property of the owner.
§ 215-102.6 Collection procedures.
A.
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.
B.
For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Nonresidential 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.
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 Ewing 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 § 215-102.5A(3) 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.
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 Ewing. 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 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 Township of Ewing. 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.
§ 215-102.7 Affordable Housing Trust Fund.
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 Ewing for the purpose of depositing development fees collected from residential and nonresidential 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 Ewing;
(2)
Funds contributed by developers to make 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 Ewing's affordable housing program.
C.
In the event of a failure by the Township of Ewing 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 Ewing, or, if not practicable, then within the county or the housing region.
D.
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.
E.
Interest accrued in the Affordable Housing Trust Fund shall only be used to fund eligible affordable housing activities approved by the Court.
§ 215-102.8 Use of funds.
A.
The expenditure of all 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 approved by the Court to address the Township of Ewing'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.
Funds shall not be expended to reimburse the Township of Ewing for past housing activities.
C.
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 Ewing 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% 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)
Payments in lieu of constructing affordable housing units on site, if permitted by ordinance or by agreement with the Township of Ewing, and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
D.
The Township of Ewing 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% 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% 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 COAH'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.
§ 215-102.9 Monitoring.
The Township of Ewing 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 nonresidential 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 Ewing's affordable housing programs, as well as an accounting of the expenditures of revenues and implementation of the spending plan approved by the Court.
§ 215-102.10 Ongoing collection of fees.
A.
The ability for the Township of Ewing 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 Ewing 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 Ewing 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 Ewing 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 Ewing retroactively impose a development fee on such a development. The Township of Ewing also shall not expend any of its collected development fees after the expiration of its judgment of compliance.
§ 215-102.11 Round Three Growth Share Regulations
[Added 6-27-2006 by Ord. No. 06-24]
A.
Purpose and findings. The purpose of this section is to facilitate the provision of affordable housing in connection with residential and nonresidential development in compliance with the New Jersey Council on Affordable Housing Round Three Rules approved December 20, 2004. This section is based on the following findings of the Township Council:
(1)
The New Jersey Supreme Court and New Jersey Legislature have recognized in South Burlington County NAACP v. Mount Laurel, 92 N.J. 158 (1983) ("Mount Laurel II") and the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., ("FHA") that New Jersey municipalities have responsibilities concerning the need to provide affordable housing for low- and moderate-income households;
(2)
The Legislature conferred upon the New Jersey Council on Affordable Housing (COAH) "primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this state." [N.J.S.A. 52:27D-304(a)];
(3)
In Mount Laurel II, the New Jersey Supreme Court ruled that municipalities had the power to address the Mount Laurel responsibilities that the Court had created through "inclusionary devices" and rejected the notion "that inclusionary measures amount to a taking without compensation" (see Mount Laurel II at 271);
(4)
In Mount Laurel II, the Supreme Court also stated, "[z]oning does not require that land be used for maximum profitability and, on occasion, the goals may require something less" (see Mount Laurel II at 274 n. 34);
(5)
In the case entitled Holmdel Builders Association v. Township of Holmdel, 121 N.J. 550, 582 (1990), the Supreme Court referred to its Mount Laurel II decision and emphasized that in designing inclusionary ordinances, "no density bonuses, compensatory benefits, or subsidies were specifically required;"
(6)
In view of the principles established by the Supreme Court in these landmark decisions, COAH recently adopted substantive regulations that authorized municipalities to impose a set-aside, without any density bonuses or other compensatory benefits, pursuant to which municipalities could require residential developers to construct one affordable residential unit for every eight market residential units the developer constructed [N.J.A.C. 5:94-4.4(a)];
(7)
COAH specifically stated that "a municipality may adopt a zoning ordinance requiring a maximum of one for every eight market-rate residential units be affordable to low- and moderate-income households, as long as the zoning has not allowed an increase in density to accommodate affordable housing." (36 N.J.R. 5775);
(8)
COAH has also authorized municipalities to require nonresidential developers to produce affordable housing without any enhancement or compensatory offsetting benefit based upon a formula that would require the production of one affordable residential unit for every 25 jobs projected to be created by the nonresidential development [N.J.A.C. 5:94-4.4(a)];
(9)
The Township of Ewing wishes to ensure that, as developers build residential and nonresidential projects, they provide affordable housing consistent with COAH's regulations and policies described above, policies soundly rooted in Supreme Court precedent; and
(10)
Implementation of these policies will ensure that as the Township grows with housing affordable to the middle and upper class, it will also grow with housing affordable to lower-income households, and that as nonresidential development occurs, it will also provide housing affordable for lower-income workers. (See Mount Laurel II at 211.)
B.
Applicability.
(1)
This subsection of the Township of Ewing's affordable housing regulations sets forth mechanisms by which developers shall provide for a fair share of affordable housing based on growth that is associated with development taking place within the Township.
(2)
Residential development. Except as exempted in Subsection C, residential projects with nine or more units are subject to the "growth share" provisions of this section and must provide one affordable housing unit on site for every eight market-rate units. Any residential project with fewer than nine units is subject to the Township's development fees as set forth in the Development Fee Ordinance, § 215-102, including those residential projects with fewer than nine units receiving an increase in residential density for which developers will be required to pay a bonus development fee of 6% of the equalized assessed value for residential development rather than the development fee of 1%.
[Amended 12-19-2006 by Ord. No. 06-36]
(3)
Nonresidential development. All nonresidential development in any zone that results in an increase in gross floor area of any existing nonresidential structure or the construction of a new nonresidential structure shall be subject to the Township's development fees as set forth in this § 215-102.
[Amended 12-19-2006 by Ord. No. 06-36]
C.
Exemptions.
(1)
Developments that received preliminary or final approval from the Planning Board and/or Board of Adjustment, as applicable, prior to the effective date of this § 215-102.
(2)
Nonprofit organizations which have received tax-exempt status pursuant to Section 501(c)(3) of the Internal Revenue Code, providing that 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.
(3)
Federal, state, county and local governments.
(4)
Public utilities under the jurisdiction of the New Jersey Board of Public Utilities to the extent that the construction for which approval is sought is of a facility which shall house equipment only and not to be occupied by any employees.
(5)
In the case of single-family development, any new residential construction which has been created as part of an on-site residential demolition permit shall not be counted towards the Borough's growth share obligation and is exempt from development fees.
[Added 12-19-2006 by Ord. No. 06-36]
D.
Residential growth share provisions.
(1)
Quantification of affordable housing obligation for residential developers. Except as otherwise provided below, in those circumstances where an applicant seeks to develop land for residential purposes with projects of nine or more units, and receives no right to increased density or other compensatory bonus, said applicant shall produce and develop on site one residential unit of housing affordable to low- and moderate-income households for every eight market-rate residential units constructed (11.11%). Any residential project with fewer than nine units is subject to the Township's development fees as set forth in this § 215-102.
[Amended 12-19-2006 by Ord. No. 06-36]
(2)
Permissible manner of satisfaction of affordable housing obligation of residential developers.
(a)
Residential development. For all residential development with nine or more units, an applicant shall satisfy its affordable housing production obligation through on-site housing production in connection with the residential project, which is one of the mechanisms permitted pursuant to COAH's regulations. By way of example, if a developer secures approval for a nine-unit project, one of the units must be reserved as an affordable unit.
[Amended 12-19-2006 by Ord. No. 06-36]
(b)
The other alternative mechanisms permitted under COAH's regulations include the purchase of an existing market-rate home at another location in the community and its conversion to an affordable price-restricted home in accordance with COAH's criteria, regulations and policies or participation in gut reconstruction and/or buy-down/write-down, buy-down/rent-down programs. An applicant shall only be entitled to satisfy its affordable housing obligation via one or more of the alternative mechanisms set forth above if the applicant first secures the written authorization of the Township Planning Board to comply via one or more of these alternative mechanisms.
(c)
Before the applicant's development application for final site plan or subdivision approval is deemed complete consistent with the Municipal Land Use Law and this chapter, the applicant must secure written permission from the Township Planning Board as to the exact manner in which alternative mechanism(s) will be used to achieve the creation of one affordable residential unit for every eight market-rate residential units.
(d)
Full and complete satisfaction of compliance with the affordable housing requirements of the development shall be a specific, automatic, essential and nonseverable condition of all land use approvals. Pursuant to this condition, the applicant must demonstrate that it has satisfied the Planning or Zoning Board condition of approval for affordable housing prior to obtaining the first building permit, and compliance with the affordable housing condition shall be a continuing condition of all Planning or Zoning Board approvals for development.
E.
Nonresidential growth-share provisions.
[Amended 12-19-2006 by Ord. No. 06-36]
(1)
Quantification of affordable housing obligation for nonresidential developers. Except as otherwise provided below, in those circumstances where an applicant seeks to develop land for nonresidential purposes and receives no right to an increased floor area ratio (FAR), as defined in § 215-8, Definitions, or other compensatory benefit, the developer shall adhere to the Township's development fees in this § 215-102 and must make a payment to the Township's Mount Laurel Trust Fund at a rate of 2% of the equalized assessed value for the project.
(2)
Full and complete satisfaction of compliance with the affordable housing requirements of the development shall be a specific, automatic, essential and nonseverable condition of all approvals. Pursuant to this condition, the applicant must demonstrate that it has satisfied the Planning or Zoning Board's affordable housing condition of approval prior to obtaining the first building permit, and compliance with the affordable housing condition shall be a continuing condition of all approvals for development.
F.
G.
General provisions for constructing affordable units.
(1)
The affordable unit(s) to be produced pursuant to Subsections A through F above shall be available to a low-income individual or household should only one affordable unit be required. Thereafter, each of the affordable units shall be divided evenly between low- and moderate-income individuals and households except in the event the applicable formulas result in an odd number of affordable units; in which event the unit shall be a low-income residential unit.
[Amended 12-19-2006 by Ord. No. 06-36]
(2)
Affordable housing units being constructed on site or off site shall meet the requirements of the Township of Ewing's Affordable Housing Ordinance and shall be in conformance with COAH's third round rules at N.J.A.C. 5:94-1 et seq., and the Uniform Housing Affordability Controls at N.J.A.C. 5:80-26.1 et seq., including, but not limited to, requirements regarding phasing schedule, controls on affordability, low/moderate income split, heating source, maximum rent and/or sales prices, affordability average, bedroom distribution, and affirmative marketing.
(3)
It shall be the applicant's responsibility, at its sole cost and expense, to arrange for a COAH- and Township-approved qualification service to ensure full COAH compliance and to file such certifications, reports and/or monitoring forms as may be required by COAH to verify COAH compliance of each affordable unit.
(4)
To the greatest extent possible, affordable housing units being provided within inclusionary developments shall be disbursed throughout inclusionary developments and shall be located within buildings designed to be architecturally indistinguishable from the market-rate units otherwise being constructed within the development. To that end, the scale, massing, roof pitch and architectural detailing (such as the selection of exterior materials, doors, windows, etc.) of the buildings containing the affordable housing units shall be similar to and compatible with that of the market-rate units.
(5)
Affordable housing deed restrictions, pricing and bedroom distributions must be in accordance with Uniform Housing Affordability Controls ("UHAC") as set forth in N.J.A.C. 5:80-26.1 et seq.
[Amended 12-19-2006 by Ord. No. 06-36]
H.
Permissible manner of satisfaction of affordable housing obligation of mixed-use developers. For all projects which include a combination of both residential and nonresidential development, the affordable housing obligation created by the residential portion of the project is set forth in Subsection D above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection D above. The affordable housing obligation created by the nonresidential portion of the project is set forth in Subsection E above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection E above.
I.
Right to greater set-aside if compensatory benefit.
(1)
As to residential developers, nothing herein shall affect the Township's ability to generate more affordable housing than the one-for-eight standard set forth above in the event that the developer secures a density bonus or other compensatory benefit through zoning or through a use variance.
(2)
As to nonresidential developers, nothing herein shall affect the Township's ability to generate an increased fee in accordance with the Township's Development Fee Ordinance, § 215-102, in the event that the developer does not secure an increased floor area ratio (FAR) or other compensatory benefit through zoning or through a use variance.
[Amended 12-19-2006 by Ord. No. 06-36]