The purpose of this Article is to establish standards for the collection, maintenance and expenditure of development fees pursuant to the New Jersey Council on Affordable Housing's (COAH) rules and regulations. Fees collected pursuant to this Article shall be used for the sole purpose of providing low and moderate income housing opportunities and assistance. This Article shall be interpreted within the framework of COAH's rules and regulations on development fees. In Holmdel Builder's Ass'n 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 COAH's adoption of rules and regulations. (Ord. No. 5-2005 § 1)

As used in this Article, the words and terms shall be interpreted to have the same meanings as set forth in the COAH regulations, unless a different meaning is clearly indicated by the context. In addition, the following specific definitions shall apply:

COAH shall mean the New Jersey Council on Affordable Housing.

DEVELOPMENT FEES shall mean money paid by an individual, person, partnership, association, company, corporation or other legal entity, for the improvement of property as permitted in N.J.A.C. 5:93-8.

EQUALIZED ASSESSED VALUE shall mean the value of a property determined by the Borough Tax Assessor through a process designed to ensure that all property in the Borough is assessed at the same assessment ratio or ratios required by law. Estimates at the time of building permit may be obtained by the Tax Assessor utilizing estimates for construction cost. Final equalized assessed value will be determined at project completion by the Tax Assessor.

HOUSING TRUST FUND shall mean the interest bearing account in which all development fees will be deposited pursuant to N.J.A.C. 5:94-6.11.

(Ord. No. 5-2005 § 2)

a. Within all zoning districts, developers shall pay a development fee of one (1%) percent of the equalized assessed value for each residential unit constructed or expanded, provided no increased density is permitted. This mandatory fee shall be calculated as follows: 0.01 x equalized assessed valuation x number of units.

b. If an increase in residential density, known as a "d" variance, is granted by the Borough Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70d(5), then the additional residential density realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of six (6%) percent of the equalized assessed value for each additional unit that may be realized, rather than the development fee of one (1%) percent. However, if the zoning on a site has changed during the two (2) year period preceding the filing of the "d" 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 (2) years preceding the filing with the Zoning Board of Adjustment of the "d" variance application.

c. The Borough may collect fees exceeding the amount set forth in paragraphs a. and b. of this section pursuant to a written Developer's Agreement approved by the Borough Council which should provide a financial incentive to the payment of the higher fee.

(Ord. No. 5-2005 § 3)

a. Developers within all zoning districts shall pay a development fee of two (2%) percent of the equalized assessed value for the nonresidential development. This mandatory fee shall be calculated as follows: 0.02 x total equalized assessed valuation.

b. If an increase in floor area pursuant to N.J.S.A. 40:55D-70d(4), known as a "d" variance; is granted; then the additional floor area realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of six (6%) percent rather than the development fee of two (2%) percent. However, if the zoning on a site has changed during the two (2) year period preceding the filing of the "d" variance application, the base floor area for the purposes of calculating the bonus development fee shall be the highest floor area permitted by right during the two-year period preceding the filing of the "d" variance application.

c. The Borough may collect fees exceeding the amount set forth in paragraphs a. and b. pursuant to a written Developer's Agreement approved by the Borough Council which Agreement shall provide a financial incentive for the payment of a higher fee.

d. 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.

(Ord. No. 5-2005 § 4)

a. Affordable housing developments shall be exempt from development fees. All other forms of new construction shall be subject to development fees as set forth in this Article.

b. The expansion or improvement of an existing residential structure shall be exempt from any development fee requirement.

c. Other development shall be exempt from any development fee required to the extent provided by the terms of any Order entered by the Superior Court of New Jersey.

(Ord. No. 5-2005 § 5)

a. The amount of the development fee shall be calculated based on the difference in the equalized assessed value of the property before and after the development activity which is subject to the development fee.

b. Developers shall pay fifty (50%) percent of the calculated development fee to the Borough of Roseland at the time of issuance of a building permit. Payment shall be made to the Borough Treasurer. The amount of the development fee shall be based initially on an estimate by the Tax Assessor of the increase in equalized assessed value attributable to the improvements to be constructed. Prior to requesting a building permit, a developer shall submit to the Tax Assessor, a request for calculation of the development fee amount.

c. Developers shall pay the balance of the development fee to the Borough of Roseland prior to issuance of a certificate of occupancy. At that time, the Tax Assessor shall calculate the actual equalized assessed value, which may differ from the estimate provided prior to issuance of the building permit. The amount of the development fee shall be recalculated, and the developer shall be responsible for paying the difference between that development fee amount and the amount paid prior to issuance of the building permit. Prior to requesting a certificate of occupancy, a developer shall submit to the Tax Assessor a request for calculation of the development fee amount.

d. No building permit or certificate of occupancy shall be issued unless or until such development fee, as applicable as set forth above, is paid to the Borough.

(Ord. No. 5-2005 § 6)

There is hereby created an interest bearing housing trust fund in a bank or a successor institution as authorized by the Governing Body, which trust fund shall be established for the purposes of receiving development fees from residential and nonresidential developers. All development fees paid by developers pursuant to this Article shall be deposited in this fund. No money shall be expended from the 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. (Ord. No. 5-2005 § 7)

a. Money deposited in a housing trust fund may be used for any activity approved by COAH for addressing the Borough's low and moderate income housing obligation. Such activities may include, but are not necessarily limited to, housing rehabilitation; new construction, regional contribution agreements subject to the provisions of N.J.A.C. 5:94-4.4(d), the purchase of land for low and moderate income housing, extensions, and/or improvements of roads and infrastructure to low and moderate income housing sites, financial assistance designed to render units more affordable to low and moderate income households and administrative, legal and other professional costs necessary to implement the Borough's housing element. The expenditure of all money shall conform to a spending plan approved by COAH.

b. At least thirty (30%) percent of the revenues collected shall be devoted to render units more affordable unless exempt as per N.J.A.C. 5:94-6.12. Examples of such activities include, but are not limited to, down payment assistance, security deposit assistance, low interest loans and rental assistance.

c. No more than twenty (20%) percent of the revenues collected from development fees each year, exclusive of the fees used to fund an RCA, shall be expended on administrative costs necessary to develop, revise or implement the housing element. Examples of eligible administrative activities include personnel, professional services, consultant services, space costs, consumable supplies and rental or purchase of equipment directly associated with plan development or plan implementation.

d. Development fee revenues shall not be expended to reimburse the Borough for housing activities that preceded a first or second round substantive certification.

(Ord. No. 5-2005 § 8)

This article shall expire if:

a. COAH dismisses or denies the Borough's petition for substantive certification;

b. COAH revokes substantive certification or this article;

c. The substantive certification/judgment of repose expires prior to the Borough's filing an adopted housing element with COAH, petitioning for substantive certification or receiving COAH's approval of this article;

d. COAH's approval for urban aid municipalities to collect development fees expires. (Ord. No. 5-2005 § 9)