Wharton City Zoning Code
ARTICLE XVII
Development Fee Ordinance
§ 165-124 Purpose.
In Holmdel Builders 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, N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules. This article establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's rules. Fees collected pursuant to this article shall be used for the sole purpose of providing low- and moderate-income housing. This article shall be interpreted within the framework of COAH's rules on development fees.
§ 165-125 Basic requirements.
The Borough of Wharton shall not spend development fees until COAH has approved a plan for spending such fees and the Borough has received third round substantive certification from COAH or a judgment of compliance.
§ 165-126 Definitions.
The following terms, as used in this article, 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 one-hundred-percent affordable development.
The New Jersey Council on Affordable Housing.
Funds paid by an individual, person, partnership, association, company or corporation for the improvement of property as permitted in COAH's rules.
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 or ratios required by law. Estimates at the time of issuance of a building permit may be obtained utilizing estimates for construction cost. Final equalized assessed value will be determined at project completion by the Municipal Tax Assessor.
§ 165-127 Development fees.
A.
Collection of fees. Fifty percent of the development fee will be collected at the time of issuance of the building permit. The remaining portion will be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the issuance of the building permit and that determined at issuance of certificate of occupancy.
B.
Residential development fees:
(1)
Within the R-40, R-15, R-10, R-75, RM-75, A, ALR, and OAL Zoning Districts, residential developers shall pay a fee of 1% of the equalized assessed value for residential development, provided no increased density is permitted.
(2)
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized.
C.
Nonresidential development fees.
(1)
Within the MB, B-1, B-2, I-1, I-2 and I-3 Zoning Districts, nonresidential developers shall pay a fee of 2% of the equalized assessed value for nonresidential development.
(2)
If an increase in floor area ratio is approved pursuant to N.J.S.A. 40:55D-70d(4), then the additional floor area realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of 6% of the equalized assessed value for nonresident development.
§ 165-128 Eligible exactions, ineligible exactions and exemptions.
A.
Affordable housing developments shall be exempt from development fees. All other forms of new construction shall be subject to development fees unless exempted below.
B.
Development fees shall be imposed and collected when an existing structure is expanded or undergoes a change to a more intense use. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
C.
Within the CBD, SH, AH-1 and AH-2 Zoning Districts, developers shall be exempt from paying a development fee.
§ 165-129 Affordable housing trust fund.
A.
There is hereby created a separate interest-bearing housing trust fund for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls. All development fees paid by developers pursuant to this chapter shall be deposited into this fund.
B.
Within seven days from the opening of the trust account, the Borough of Wharton shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the bank and COAH, to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:94-6.16(b).
C.
No funds shall be expended from the affordable housing trust fund unless the expenditure conforms to a spending plan approved by COAH. All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.
§ 165-130 Use of funds.
A.
Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the municipal fair share. Such activities include, but are not limited to, rehabilitation, new construction, RCAs subject to the provisions of N.J.A.C. 5:94-4.4(d), ECHO housing, purchase of land for affordable housing, improvement of land to be used for affordable housing, purchase of housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, or administration necessary for implementation of the housing element and fair share plan. The expenditure of all funds shall conform to a spending plan approved by COAH.
B.
Funds shall not be expended to reimburse Wharton for past housing activities.
C.
After subtracting development fees collected to finance an RCA, a rehabilitation program or a new construction project that are necessary to address the Borough of Wharton's affordable housing obligation, at least 30% of the balance remaining 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 median income by region.
(1)
Affordability assistance programs may include down payment assistance, security deposit assistance, low-interest loans and rental assistance.
(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 third round municipal fair share plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner shall entitle the Borough of Wharton to bonus credits pursuant to N.J.A.C. 5:94-4.22.
(3)
Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
D.
The Borough of Wharton 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, in accordance with N.J.A.C. 5:94-7.
E.
No more than 20% of the revenues collected from development fees each year, exclusive of the fees used to fund an RCA, shall 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. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. 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. Development fee administrative costs are calculated and may be expended at the end of each year or upon receipt of the fees.
§ 165-131 Contested fees.
Imposed and collected development fees that are challenged shall be placed in an interest-bearing escrow account by the Borough of Wharton. If all or a portion of the contested fees are returned to the developer, the accrued interest on the returned amount shall also be returned.
§ 165-132 Monitoring and ongoing collection of fees.
A.
The Borough of Wharton shall complete and return to COAH all monitoring forms included in the annual monitoring report related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls, and the expenditure of revenues and implementation of the plan certified by COAH. All monitoring reports shall be completed on forms designed by COAH.
B.
The ability for the Borough of Wharton to impose, collect and expend development fees shall expire with its substantive certification unless the Borough has filed an adopted housing element and fair share plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance. If Wharton fails to renew its ability to impose and collect development fees prior to the expiration of certification, it may resume the imposition and collection of development fees only by complying with the requirements of N.J.A.C. 5:94-6. Wharton shall not impose a development fee on a development that receives preliminary or final approval after the expiration of its substantive certification, nor will Wharton retroactively impose a development fee on such a development. The Borough of Wharton will not expend development fees after the expiration of its substantive certification.