**Webmasters Note: The previous section has been amended as per Ordinance No. 07-49.
I. Purpose
a) 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 Council on Affordable Housing's (COAH's) adoption of rules.
b) Pursuant to P.L.2008, c.46 section 8 (C. 52:27D-329.2) and the Statewide NonResidential Development Fee Act (C. 40:55D-8.1 through 8.7), COAH is 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 are under the jurisdiction of the Council or court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from non-residential development.
c)This ordinance establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance P.L.2008, c.46, Sections 8 and 32-38. Fees collected pursuant to this ordinance shall be used for the sole purpose of providing low- and moderate-income housing. This ordinance shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.
II. Basic Requirements
a) This ordinance shall not be effective until approved by COAH pursuant to N.J.A.C. 5:96-5.1.
b) Neptune Township shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
III. Definitions
a) The following terms, as used in this ordinance, shall have the following meanings:
i. AFFORDABLE HOUSING DEVELOPMENT means 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 percent affordable development.
ii. COAH OR THE COUNCIL means the New Jersey Council on Affordable Housing established under the Act which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the State.
iii. DEVELOPMENT FEE means money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.
iv. DEVELOPER means 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.
v. EQUALIZED ASSESSED VALUE means 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).
The following residential fees shall be determined annually by resolution of the Township Committee, in accordance with N.J.A.C. 5:97-8.3, limited to the following:
IV. Residential Development Fees
a)Imposed fees
i. Within the all zoning districts, residential developers, except for developers of the types of development specifically exempted below, shall pay a fee up to one and a half (1.5%) percent of the equalized assessed value for residential development provided no increased density is permitted.
ii. 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 up to six percent (6%) percent of the equalized assessed value for each additional unit that may be realized. However, 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.
Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal up to one and a half (1.5) percent of the equalized assessed value on the first two units; and the specified higher percentage up to six (6) percent of the equalized assessed value for the two additional units, provided zoning on the site has not changed during the two-year period preceding the filing of such a variance application.
b)Eligible exactions, ineligible exactions and exemptions for residential development
i. Affordable housing developments, developments where the developer is providing for the construction of affordable units elsewhere in the municipality, and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.
ii. Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval.
A."substantial change" is a revision to an approved preliminary or final site plan or subdivision which meets any one (1) of the following limitations:*
(b) Seven (7) feet in building height;
(c) One (1) percent in floor area ratio;
(d) One (1) percent in impervious coverage;
(e) Five (5) feet in building spacing or location;
(f) Three (3) parking spaces;
(g) Five (5) feet in driveway locations;
(h) One (1) percent in site disturbances;
(i) Five (5) feet in lot line locations;
(j) Any change in residential density;
(k) Any new variances pursuant to N.J.S.A. 40-55D-70.c or d;
(l) Any such change encumbered above shall not alter the percentage of low/moderate income housing in an approved project, if applicable.
* A substitution of similar landscaping material, lighting fixtures and signage is not a substantial change as long as there is no change in approved quantities or dimensions.
Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.
iii. Owner-occupied residential structures demolished and replaced as a result of a fire, flood, or natural disaster shall be exempt from paying a development fee.
iv. Single family structures new or renovated that result in no additional residential structures;
v. Public government agencies and schools, which are classified by the Tax Assessor as exempt from payment of property taxes (Property Classes 15A & 15C), shall be exempt from paying development fees.
V. Collection Procedures
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 responsible for the issuance of a building permit.
b) 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.
c) 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.
d) Should Neptune Township 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).
The development fee shall be collected at the issuance of the certificate of occupancy.
e) 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 Neptune Township. 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 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 Neptune Township. 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.
VI. Affordable Housing Trust Fund
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 residential and non-residential 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 affordable units;
2. developer contributed funds to make ten percent (10%) of the adaptable entrances in a townhouse or other multistory attached 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 Neptune Township's affordable housing program.
c) Within seven days from the opening of the trust fund account, Neptune Township 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. 5:97- 8.13(b).
d) All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.
VII. Use of Funds
a)The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the Neptune Township'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, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or 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, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.
b) Funds shall not be expended to reimburse Neptune Township for past housing activities.
c) At least 30 percent of all development fees collected and interest earned 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 percent or less of median income by region.
i. 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.
ii. Affordability assistance to households earning 30 percent 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 percent or less of median income.
iii. 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) Neptune Township 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. 5:96-18.
e) No more than 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. In the case of a rehabilitation program, no more than 20 percent 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. 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.
VIII. Monitoring
a)Neptune Township shall complete and return to COAH all monitoring forms included in monitoring requirements related to the collection of development fees from residential and non-residential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with Neptune Township's housing program, as well as to the expenditure of revenues and implementation of the plan certified by COAH. All monitoring reports shall be completed on forms designed by COAH.
IX. Ongoing Collection of Fees
a)The ability for Neptune Township to impose, collect and expend development fees shall expire with its substantive certification unless Neptune Township 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 Neptune Township 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 (C.52:27D-320). Neptune Township shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall Neptune Township retroactively impose a development fee on such a development. Neptune Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance.
**Webmasters Note: The previous section has been amended as per Ordinance No. 12-13.
A. Guarantee required. Before recording final subdivision plats or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65d, the approving Board, for the purpose of assuring the installation an maintenance of on- and off-tract (pursuant to N.J.S.A. 40:55D-42) improvements, shall require and accept in accordance with the standards adopted by this Ordinance, the following:
1. The furnishing of a performance guarantee in favor of the Township of Neptune in an amount not to exceed 120% of the cost of installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in (§1003B - Determination of Performance Guarantee Estimate) for improvements which the Board may deem necessary or appropriate, including; streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments, as shown on the final subdivision plat and required by the Map Filing Law (N.J.S.A. 46:23-9.9 et seq.), culverts, storm sewers, drainage structures, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping. A separate estimate shall be prepared for soil erosion and sedimentation control devices.
2. Provision for a maintenance guarantee to be posted with the Township Committee for a period not to exceed two (2) years after final acceptance of the improvement, in an amount not to exceed fifteen (15) percent of the cost of the improvement, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in Section 1003-B Determination of Performance Guarantee Estimate. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the municipality for such utilities or improvements.
3.The Municipal Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the developer.
B. Time period for installation. All public improvements shall be completed within six (6) months of issuance of the last Certificate of Occupancy or five (5) years of issuance of a Soil Disturbance Permit, whichever comes first. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Township Committee by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in §1003-B Determination of Performance Guarantee Estimate as of the time of the passage of the resolution.
C. Developer liability. If the required improvements are not completed or corrected in accordance with the performance guarantee, the developer and surety, if any, shall be liable thereon to the Township for the reasonable cost of the improvements not completed or corrected and the Township may either prior to or after the receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law (N.J.S.A. 40A: 11-1 et seq.).
A. Improvements to be installed. No final plan shall be approved unconditionally by the Board until the satisfactory completion and performance of all such required improvements have been certified to the Board by the Municipal Engineer, unless the owner shall have filed with the municipality a performance guarantee sufficient in amount to cover the cost of all such improvements in uncompleted portions thereof as estimated by the Municipal Engineer, and assuring the installation of such uncompleted improvements on or before an agreed upon date.
B. Determination of performance guarantee estimate. A performance guarantee estimate shall be prepared by the Municipal Engineer or the developer's engineer and approved by the Municipal Engineer, setting forth all requirements for improvements as fixed by the Board and their estimated cost. The estimated cost of the installation of improvements determined by the Municipal Engineer shall be based on documented construction costs for public improvements prevailing in the general area of the Township. The developer may appeal the Municipal Engineer's estimate to the Township Committee. The Township Committee shall decide the appeal within forty-five (45) days of receipt of the appeal in writing by the Township Clerk. After the developer posts a guarantee with the Township based on the cost of the installation of improvements as determined by the Township Committee, he may institute legal action within one (1) year of the posting in order to preserve the right to a judicial determination as to the fairness and reasonableness of the amount of the guarantee.
C. Determination of maintenance guarantee estimate. The approved performance guarantee estimate shall fix the requirements of maintenance of the utilities and improvements to be installed and completed by the developer. A surety company or cash bond meeting the requirements herein above set forth may be furnished to secure the maintenance guarantee, or the performance bond may be styled or amended to provide such security in reduced amount in keeping with the requirements.
A. The applicant shall present two (2) copies of the performance guarantee in an amount equal to the amount of the approved performance guarantee estimate for approval as to form and execution by the Department of Finance with assistance by the Township Attorney, if necessary.
B. The Department of Finance shall forward its approval of the form of the performance guarantee for consideration for adoption by the governing body.
C. Developer's Agreements: In addition to those requirements of the Land Development Ordinance, there shall be required on all major subdivisions and all major site plans a Developer's Agreement prepared by the Township Attorney. The terms of said agreement shall be by the general development of the tract, the site plan and/or subdivision approval resolution and the following terms and procedures:
1. Any of the terms set forth in this section and the Land Development Ordinance concerning performance;
2. The manner in which the performance guarantee shall be held by the Township with the additional provision that the cash deposit shall be the last amount of security released by the Township so that the entire performance guarantee shall be reduced and released prior to release of any cash deposit posted therein;
3. That the developer shall maintain or shall be responsible for having others maintain all roads within the subdivision, which maintenance shall include snow removal, cleanup and repair until final acceptance by the Township, or approval of a Municipal Service Agreement;
4. The developer shall be responsible for all garbage and refuse pickup and disposal, including from any buildings or dwellings that may receive a Certificate of Occupancy on any new street, until final acceptance by the Township or approval of a Municipal Service Agreement;
5. The developer shall be responsible for the cost and maintenance of all fire hydrants installed on any new street until final acceptance by the Township or approval of a Municipal Service Agreement;
6. The developer shall be responsible for all street lighting and the cost of maintaining the same until the date of final acceptance by the Township or approval of a Municipal Service Agreement;
7. The developer shall deliver to the Township a Certificate of Insurance for general liability coverage in the amount of not less than $1,000,000.00/$2,000,000.00 naming the Township as an additional insured and in the form acceptable to the Township Attorney, which shall remain in effect until the date of final acceptance by the Township;
8. The developer, its successors or assigns is required to comply with the Developer's Fee Ordinance of Neptune Township pursuant to the Land Development Ordinance of the Township of Neptune to the extent applicable. The developer shall make any Affordable Housing Contribution relating to that portion of the development allowed by law and applicable to said development;
9. The developer, its successors or assigns shall repair and maintain all decorative lighting fixtures, lighting fixture poles, sidewalks and/or trees installed and approved by final plan, including those decorative lighting fixtures installed and trees planted within the public right-of-way, if any, as required by such plan and not on developer's property;
10. Said Developer's Agreement shall be in recordable form and the same shall be recorded in the Clerk's Office of Monmouth County, with the recording fees paid for by the developer;
11. The Mayor and Township Committee shall have the right to waive, under appropriate circumstances, any and all of the provisions that may be required by this Section and a Developer's Agreement.
**Webmasters Note: The previous subsection, C., has been added as per Ordinance No. 14-04.
