A224

An Act concerning the “Statewide Non-Residential Development Fee Act,” amending P.L.2008, c.46, P.L.2009, c.90, and repealing various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The following sections of law are repealed:

Sections 32 through 38 of P.L.2008, c.46 (C.40:55D-8.1 through C.40:55D-8.7);

Section 39 of P.L.2009, c.90 (C.40:55D-8.8);

Section 14 of P.L.2008, c.46 (C.52:27D-329.8); and

Section 41 of P.L.2009, c.90 (C.52:27D-320.1).

2. Section 40 of P.L.2009, c.90 (C.52:27D-311.3) is amended to read as follows:

40. The portion, if any, of the affordable housing obligation of a municipality attributable to a particular non-residential development shall be reduced or eliminated if:

a. [the collection of fees under sections 32 through 38 of P.L.2008, c.46 (C.40:55D-8.1 through C.40:55D-8.7) is effectively suspended for a period of time pursuant to that law; and] (Deleted by amendment, P.L. , c. .)

b. the Council on Affordable Housing, in consultation with the Department of Community Affairs, has made a determination within two years of the effective date of P.L.2009, c.90 (C.52:27D-489a et al.), that there are insufficient funds in the "New Jersey Affordable Housing Trust Fund," or through other State or federal housing subsidies available to a municipality to assist in the production of such housing units [, in the same amount as would have been collected if not for the suspension thereof, pursuant to sections 32 through 38 of P.L.2008, c.46 (C.40:55D-8.1 through C.40:55D-8.7)] by the date of the determination.

c. Nothing in P.L.2009, c.90 (C.52:27D-489a et al.) shall be construed to affect the municipal obligation to provide a realistic opportunity for its projected fair share of the regional housing need as determined by the Council on Affordable Housing in accordance with the provisions of the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.).

(cf: P.L.2011, c.122, s.3)

3. Section 8 of P.L.2008, c.46 (C.52:27D-329.2) is amended to read as follows:

8. a. The council may authorize a municipality that has petitioned for substantive certification, or that has been so authorized by a court of competent jurisdiction, and which has adopted a municipal development fee ordinance to impose and collect development fees from developers of residential property, in accordance with rules promulgated by the council. Each amount collected shall be deposited and shall be accounted for separately, by payer and date of deposit.

A municipality may not spend or commit to spend any affordable housing development fees [, including Statewide non-residential fees collected and deposited into the municipal affordable housing trust fund,] without first obtaining the council's approval of the expenditure. The council shall promulgate regulations regarding the establishment, administration and enforcement of the expenditure of affordable housing development fees by municipalities. The council shall have exclusive jurisdiction regarding the enforcement of these regulations, provided that any municipality which is not in compliance with the regulations adopted by the council 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).

b. A municipality shall deposit all fees collected[, whether or not such collections were derived] from fees imposed upon [non-residential or] residential construction into a trust fund dedicated to those purposes as required under this section, and such additional purposes as may be approved by the council.

c. (1) A municipality may only spend development fees for an activity approved by the council to address the municipal fair share obligation.

(2) Municipal development trust funds shall not be expended to reimburse municipalities for activities which occurred prior to the authorization of a municipality to collect development fees.

(3) A municipality shall set aside a portion of its development fee trust fund for the purpose of providing affordability assistance to low and moderate income households in affordable units included in a municipal fair share plan, in accordance with rules of the council.

(a) Affordability assistance programs may include down payment assistance, security deposit assistance, low interest loans, common maintenance expenses for units located in condominiums, rental assistance, and any other program authorized by the council.

(b) Affordability assistance to households earning 30 percent or less of median income may include buying down the cost of low income units in a municipal fair share plan to make them affordable to households earning 30 percent or less of median income. The use of development fees in this manner shall not entitle a municipality to bonus credits except as may be provided by the rules of the council.

(4) A municipality 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 municipality expends development fee proceeds, in accordance with rules of the council.

(5) Not more than 20 percent of the revenues collected from development fees shall be expended on administration, in accordance with rules of the council.

d. The council shall establish a time by which all development fees collected within a calendar year shall be expended; provided, however, that all fees shall be committed for expenditure within four years from the date of collection. A municipality that fails to commit to expend the balance required in the development fee trust fund by the time set forth in this section shall be required by the council to transfer the remaining unspent balance at the end of the four-year period to the "New Jersey Affordable Housing Trust Fund," established pursuant to section 20 of P.L.1985, c.222 (C.52:27D-320), as amended by P.L.2008, c.46 (C.52:27D-329.1 et al.), to be used in the housing region of the transferring municipality for the authorized purposes of that fund.

e. Notwithstanding any provision of this section, or regulations of the council, a municipality shall not collect a development fee from a developer whenever that developer is providing for the construction of affordable units, either on-site or elsewhere within the municipality.

[This section shall not apply to the collection of a Statewide development fee imposed upon non-residential development pursuant to sections 32 through 38 of P.L.2008, c.46 (C.40:55D-8.1 et seq.) by the State Treasurer, when such collection is not authorized to be retained by a municipality.]

(cf: P.L.2008, c.46, s.8)

4. This act shall take effect immediately.

STATEMENT

This bill would repeal the “Statewide Non-Residential Development Fee Act,” enacted as sections 32 through 38 of P.L.2008, c.46 (C.40:55D-8.1 through C.40:55D-8.7), which established a Statewide non-residential development fee charged by all municipalities for non-residential construction or improvements, at a rate of two and one-half percent of the equalized assessed value of land and improvements for all new non-residential construction on unimproved lots, and at a rate of two and one-half percent of the increase in equalized assessed value for additions to existing structures to be used for non-residential purposes.

The bill also repeals, and amends, several statutes that reference the “Statewide Non-Residential Development Fee Act.”