27:1C-7 - Assessment, collection of development fees
27:1C-7. Assessment, collection of development fees
a. After the effective date of an ordinance or resolution, as appropriate, adopted under section 6 of this act, the governing body of the county may provide, by ordinance or resolution, as appropriate, for the assessment and collection of development fees on developments within the district.
b. The ordinance or resolution, as appropriate, shall specify that the fee shall be assessed on a development at the time that the development receives preliminary approval from the municipal approval authority or, where the municipality has not enacted an ordinance requiring approval of the development, at the time that a construction permit is issued. If the development is to be constructed in phases or there is a substantial modification of preliminary approval as defined in the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.), the fee shall be assessed at the time of the preliminary approval of the respective phase or at the time of modification, as the case may be. For a development which has received preliminary plan approval prior to the adoption of the ordinance and where final approval is not obtained for that phase of development within three years of preliminary approval, the fee shall be assessed at the time of final approval.
c. The ordinance or resolution, as appropriate, shall specify whether the fee is to be paid at the time a construction permit is issued or in a series of payments, as set forth in a schedule of payments contained in the ordinance or resolution, as appropriate. The ordinance or resolution, as appropriate, may provide for payment of the fee in a series of periodic payments over a period of no longer than 20 years. The payments due to the county, whether as a lump sum or as balances due, where a series of payments is to be made, shall be enforceable by the county as a lien on the land and any improvements thereon which lien shall be recorded by the appropriate county officer in the record book of the appropriate county office. Any ordinance or resolution, as appropriate, shall set forth the procedures for enforcement of the lien in the event of delinquencies. When the fee is paid in full on the development or portion thereof, the lien on the development or portion thereof, as appropriate, shall be removed. Any ordinance or resolution, as appropriate, shall provide for the procedure by which any portion of the land and any improvements thereon shall be released from the lien required by this section and, shall require that any lien filed in accordance with this section shall contain a provision citing the release procedures. Where a series of payments is to be made, failure to make any one payment within 30 days after receipt of a notice of late payment shall constitute a default and shall obligate the person owing the unpaid balance to pay that balance in its entirety.
d. Any development or phase thereof which has received preliminary approval prior to the development assessment liability date shall not be subject to the assessment and collection of a development fee under this act but shall be liable for the payment of off-site transportation improvements to the extent agreed upon under the applicable law, rule, regulation, ordinance or resolution in effect at the time of the agreement. Any development or phase thereof which receives preliminary approval after the development liability assessment date shall be subject to the assessment and collection of a development fee under this act, but shall receive a credit against the fee for the amount paid or obligated to be paid to State, county or municipal agencies for the cost of off-site transportation improvements under agreements entered into under the applicable law, rule, regulation, ordinance or resolution in effect at the time of the agreement.
e. The ordinance or resolution, as appropriate, also shall provide for the establishment of a transportation development district trust fund under the control of the county treasurer or such other officer as appropriate. All monies collected from development fees and any other monies as may be available for the purposes of this act shall be deposited into the trust fund which is to be invested in an interest bearing account.
f. An ordinance or resolution, as appropriate, adopted under this section also may contain provisions for: (1) delineating a core area within the district within which the conditions justifying creation of the district are most acute and providing for a reduced development fee rate to apply to developments inside that core area; (2) credits against assessed development fees for payments made or expenses incurred which have been determined by the governing body of the county to be in furtherance of the district transportation improvement plan, including but not limited to, contributions to transportation improvements, other than those required for safe and efficient highway access to a development, and costs attributable to the promotion of public transit or ridesharing; (3) exemptions from or reduced rates for development fees for specified land uses which have been determined by the governing body of the county to have a beneficial, neutral or comparatively minor adverse impact on the transportation needs of the district; (4) a reduced rate of development fees for developments for which construction permits were issued after the development assessment liability date but before the effective date of the ordinance or resolution, as appropriate, where those dates are different; and (5) a reduced rate of development fees for developers submitting a peak-hour automobile trip reduction plan approved by the commissioner under standards adopted by the commissioner by regulation. Standards for the approval of peak-hour automobile trip reduction plans may include, but need not be limited to, physical design for improved transit, ridesharing, and pedestrian access; incorporation of residential uses into predominantly nonresidential development; and proximity to potential labor pools. The ordinance or resolution, as appropriate, shall provide for the exemption from assessment of development fees for any development of low and moderate income housing units which are constructed pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et seq.) or under court settlement.
g. An ordinance or resolution, as appropriate, shall specify that any fees collected, plus earned interest, not committed to a transportation project under a project agreement entered into under section 9 of this act within 10 years of the date of collection shall be refunded to the feepayer under a procedure prescribed by the commissioner by regulation for this purpose, except that if the payer of the fee transfers the development or any portion thereof, he shall enter into an agreement with the grantee in such form as shall be provided by regulation of the commissioner which shall indicate who shall be entitled to receive any refund, and such agreement shall be filed with the designated county officer.
h. An ordinance or resolution, as appropriate, shall be sufficiently certain and definitive to enable every person who may be required to pay a fee to know or calculate the limit and extent of the fee which will be assessed against a specific development proposal. Development fees shall be reasonably related to the added traffic growth attributable to the development which is subject to the assessment and the maximum amount of fees for transportation improvements that may be charged to any development by the State, county or municipality pursuant to this act or any other law shall not exceed the property owner's "fair share" of such improvement costs. "Fair share" means the added traffic growth attributable to the proposed development or phase thereof. Approval of a development application by any State, county or municipal body or agency shall not be withheld or delayed because of the necessity to construct an off-site transportation improvement if the developer has contributed his "fair share" obligation under the provisions of this act.
i. Any person who has been assessed a development fee under the provisions of an ordinance or resolution adopted pursuant to this section may appeal the assessment by filing an appeal with the commissioner within 90 days of the receipt of notification of the amount of the assessment, on the grounds that the governing body or its officers or employees in issuing the assessment did not abide by the provisions of this act or the provisions of the ordinance or resolution issued hereunder or of the rules and regulations adopted by the commissioner pursuant to this act. The decision of the commissioner constitutes an administrative action subject to review by the Appellate Division of the Superior Court. Nothing contained herein shall be construed as limiting the ability of any person so assessed from filing an appeal based upon an agreement to pay or actual payment of the fee.
L.1989,c.100,s.7.