Rockleigh City Zoning Code
ARTICLE XI
Affordable Housing Development Fees 1
§ 34-42.1 Purpose.
[Ord. No. 2016-08]
a.
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), determined that mandatory development fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27D-301, et seq., and the New Jersey Constitution.
b.
Pursuant to N.J.S.A. 52:27D-329.2 and the Statewide Nonresidential Development Fee Act, N.J.S.A. 40:55D-8.1 through 40:55D-8.7 inclusive, municipalities are authorized to adopt and promulgate regulations for the collection, maintenance and expenditure of development fees intended to be used for the sole purpose of providing low and moderate income housing.
c.
This article establishes standards for the collection, maintenance and expenditure of development fees pursuant to the aforementioned statutory provisions.
§ 34-42.2 Approval Required.
[Ord. No. 2016-08]
This article shall not be effective until the Superior Court of New Jersey or such agency or tribunal having jurisdiction approves a plan for spending such development fees and the Borough has received Third Round Substantive Certification and a Judgment of Compliance from the Superior Court of New Jersey.
§ 34-42.3 Definitions.
[Ord. No. 2016-08]
As used in this article, the following terms shall have the meanings indicated:
Shall mean a development included in the Housing Element and Fair Share Plan adopted by the Planning Board, which includes but is not limited to accessory apartment units for very low and moderate income persons. Such a development may also include a special needs housing inclusive development or a one-hundred-percent-affordable development.
Shall mean 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.
Shall mean money paid by a developer for the improvement of property as permitted by applicable law.
Shall mean the assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with Sections 1, 5, and 6 of P.L. 1973, c.123 (N.J.S.A. 54:1-35a through 54:1-35c).
§ 34-42.4 Nonresidential Development Fees.
[Ord. No. 2016-08]
a.
Imposed Fees.
1.
Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% percent of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.
2.
Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2.5% percent 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% percent shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e., land and improvement, at the time 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 Residential Development.
1.
The nonresidential portion of mixed-use inclusionary or market rate development shall be subject to the development fee of 2.5% percent, unless otherwise exempted below.
2.
The fee of 2.5% percent shall not apply to an increase in equalized assessed value resulting from alterations, change in use within 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 P.L. 2008, c.46, as specified in the Form N-RDF, State of New Jersey Nonresidential Development Certification/Exemption form. 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 P.L. 2008, c.46, shall be subject to it at such time 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 of 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 forty-five (45) days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by Rockleigh as a lien against the real property of the owner.
§ 34-42.5 Collection Procedures.
[Ord. No. 2016-08]
a.
Upon the granting of a preliminary, final or other applicable approval for a development, the applicable approving authority shall direct its staff to notify the Construction Official or designated municipal official responsible for the issuance of a building permit.
b.
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 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.
Within 90 days of receipt of that notice, the Municipal Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.
e.
The Construction Official responsible for the issuance of a final certificate of occupancy notifies the local Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.
f.
Within 10 business days of a request for the scheduling of a final inspection, the Municipal 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.
Should Rockleigh 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.
The payment of the nonresidential development fee shall be made prior to the issuance of a certificate of occupancy for such development. A final certificate of occupancy shall not be issued until such time as the fee imposed pursuant to this section has been paid by the developer.
i.
Appeal of Development Fees.
1.
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 forty-five (45) days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by Rockleigh. 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.
§ 34-42.6 Affordable Housing Trust Fund.
[Ord. No. 2016-08]
a.
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 nonresidential developers.
b.
All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities permitted by applicable law.
§ 34-42.7 Use of Funds.
[Ord. No. 2016-08]
a.
The expenditure of all funds shall conform to a spending plan approved by the Superior Court of New Jersey or by such other agency or tribunal having jurisdiction. Funds deposited in the housing trust fund may be used for any activity approved by the applicable tribunal or agency to address Rockleigh's fair share obligation and may be set up as a grant or revolving loan program. Such activities may include, but are not limited to, providing subsidies to homeowners who make available accessory apartment units consistent with the Borough's Housing Element and Fair Share Plan.
b.
The Borough may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan consistent with applicable regulations.
c.
No more than twenty (20%) percent of all revenues collected from development fees may be expended on administration, including but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. Administrative funds may be used for income qualification of households, monitoring the turnover of units, and compliance with applicable monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the affordable housing trust fund.
§ 34-42.8 Monitoring.
[Ord. No. 2016-08]
The Borough shall complete and return to such designated agency or tribunal all required monitoring forms related to the collection of development fees from nonresidential developers.
§ 34-42.9 Ongoing Collection of Fees.
[Ord. No. 2016-08]
The ability of Rockleigh to impose, collect and expend development fees shall expire with its substantive certification unless Rockleigh has prepared an adopted Housing Element and Fair Share Plan and has petitioned for substantive certification and for approval of its Development Fee Ordinance. If the Borough fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification, it may be subject to forfeiture of any or all funds remaining within its municipal 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). Rockleigh shall not impose a nonresidential development fee on a development that received preliminary or final site plan approval after the expiration of its substantive certification or Judgment of Compliance, nor shall Rockleigh retroactively impose a development fee on such a development. Rockleigh shall not expend development fees after the expiration of its substantive certification or Judgment of Compliance.