Waldwick City Zoning Code

In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the then-functioning Council on Affordable Housing's adoption of rules.

Pursuant to P.L. 2008, c. 46 section 8 (N.J.S.A. 52:27D-329.2), COAH was authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that were under the jurisdiction of the Council or court of competent jurisdiction and had a COAH-approved spending plan were able to retain fees collected from non-residential development.

In Re: adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015), also known as the Mount Laurel IV decision, the Supreme Court remanded COAH's duties to the Superior Court. As a result, affordable housing development fee collections and expenditures from the municipal affordable housing trust funds to implement municipal Third Round Fair Share Plans through July 1, 2025, were under the Court's jurisdiction and were subject to approval by the Court.

Pursuant to P.L. 2024, c. 2, the authority relating to rulemaking on the collection of residential and non-residential development fees is appropriately delegated to the Department of Community Affairs, following the abolition of COAH, effective March 20, 2024. As such, municipalities which have obtained or are in the process of seeking compliance certification may retain and expend these development fees.

This ordinance establishes standards for the collection, maintenance, and expenditure of development fees pursuant to P.L. 2024, c.2, N.J.S.A. 52:27D-301 et seq., N.J.A.C. 5:99-1 et seq., and as previously established in accordance with P.L. 2008, c. 46, Sections 8 and 32-38. Fees collected pursuant to this article shall be used for the sole purpose of providing low- and moderate-income housing.

Basic requirements.

Imposed fees.

Eligible exactions, ineligible exactions and exemptions for residential development

Imposed fees.

Eligible exactions, ineligible exactions and exemptions for non-residential development

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 responsible for the issuance of a building permit.

For non-residential 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 non-residential development shall complete Form N-RDF as per the instructions provided. The construction official shall verify the information submitted by the non-residential 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.

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.

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.

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.

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.

Should the Borough of Waldwick 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), as amended and supplemented.

The Borough shall collect one-hundred percent of the development fee for residential and nonresidential development at or prior to the issuance of the certificate of occupancy. 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, or prior to, the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the time of the issuance of the building permit and that determined at issuance of certificate of occupancy. Developers shall be notified of the fee by the Borough, including when payment is required to be made, at the time of land use board approval or application for a construction permit.

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 Waldwick. 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.

A developer may challenge non-residential 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 Waldwick. The local code enforcement official shall thereafter issue the certificate of occupancy, provided that the construction is otherwise eligible for a certificate of occupancy. 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.

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 non-residential developers and proceeds from the sale of units with extinguished controls. The Borough shall provide written authorization, in the form of a three-party escrow agreement between the Borough, the bank or other financial institution, and the Division, to permit the Division to direct the disbursement of the funds, as provided for at N.J.A.C. 5:99-5.6, shall be maintained at all times. This authorization shall be submitted to the Division within 21 days from the opening of the trust fund account and/or within 21 days of any change in banks or other financial institutions in which trust funds are deposited. The Borough's affordable housing trust fund shall be used to address municipal low- and moderate-income housing obligations with in the time frames established by the Act and N.J.A.C 5:99-1 et seq. All development fees paid by developers pursuant to this chapter shall be deposited into this fund. The Borough shall identify the funds on its monitoring report pursuant to N.J.A.C. 5:99-5 and include a plan for the use of the funds in its spending plan.

The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

Funds deposited in the housing trust fund may be used for any eligible activity as set forth in the amended Fair Housing Act (N.J.S.A. 52:27D-301 et seq.), N.J.A.C. 5:99-2, and for any housing activity as approved by Dispute Resolution Program pursuant to N.J.S.A. 52:27D-329.2.a(4) to address the municipal fair share, or by the Division pursuant to N.J.A.C. 5:99-4. Such activities include, but are not limited to:

Until a new spending plan is approved pursuant to the declaratory judgement action filed in accordance with the amended Fair Housing Act, the Borough shall be entitled to expend funds from the housing trust fund in accordance with the approved spending plan dated August 2018 in conjunction with the Borough's application for approval for Round 3 or in accordance with the Fair Housing Act as amended in March 2024. Thereafter, funds shall not be expended to reimburse the Borough for activities that occurred prior to the authorization of the Borough to collect development fees; on attorney fees or court costs to obtain a judgment of compliance or order of repose, including any associated administration costs; on any costs in connection with a challenge to a determination of the Borough's fair share obligation; on any costs in connection with a challenge to the Borough's obligation, housing element or fair share plan.

At least 20 percent of all development fees collected and interest earned shall be used to provide affordability assistance to very-low, low, and moderate income households in affordable units included in the municipal Fair Share Plan pursuant to N.J.S.A. 52:27D-329.1 and in accordance with N.J.A.C. 5:99-2.5. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30 percent or less of median income by region.

The Borough of Waldwick may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance or any program or activity for which the Borough expends development fee proceeds, in accordance with N.J.S.A. 52:27D-301 et seq. and N.J.A.C. 5:99-1 et seq.

No more than 20 percent of all revenues collected from development fees shall be expended on administration, in accordance with N.J.A.C. 5:99-2.4. Administrative expenses may include costs reasonably related to the determination of the fair share obligation and the development of a municipal housing element and fair share plan and may include fees necessary to develop or implement affordable housing programs, an affirmative marketing program, and/or expenses that are reasonably necessary for compliance with the processes of the Program, including, but not limited to, the costs to the Borough of resolving a challenge pursuant to the Program. Administrative expenses may also include costs associated with functions carried out in compliance with UHAC, including activities related to the marketing program and waitlist management, administering the placement of occupants in housing units, income qualification of households, monitoring the turnover of sale and rental units, preserving existing affordable housing, and compliance with the Division's monitoring requirements. The proportion of a municipal employee's salary related to the MHL or RCA administrator functions and fees for required educational programs, may be paid as an administrative expense from the municipal affordable housing trust fund.

The Borough of Waldwick shall comply with the reporting requirements set forth in N.J.S.A. 52:27D-329.2. N.J.S.A. 52:27D-329.4, and as set forth at N.J.A.C. 5:99-5.