Municipalities May Still Be Charging COAH Fees: Do You Have To Pay?

The New Jersey Council on Affordable Housing recently published a “NRDF Moratorium FAQ” sheet (available here), advising municipalities that “if a preliminary or final site plan approval was granted prior to July 17, 2008, and said approval includes a requirement for a non-residential development fee under a COAH or Court approved development fee ordinance, that fee can still be collected (i.e. 1% or 2%), provided building permits are issued for the development prior to January 1, 2013.”

At least one municipality is acting on such advice, and refusing to release building permits and/or certificates of occupancy until the previously required ordinance fee is paid. 

But is COAH’s advice consistent with the Stimulus Act? Probably not.

While the statute has yet to be interpreted by the courts, Section 36 (e) of the Stimulus Act states as follows: “The [NRDF Act] prohibits municipalities from imposing their own fees to fund affordable housing on non-residential development, and [the Stimulus Act] is not intended to alter this underlying policy.” (emphasis added).

Thus, the plain language of the Stimulus Act prohibits municipalities from imposing their own affordable housing fee. Refusing to release permits or certificates of occupancy prior to the payment of a previously required fee certainly seems to this author as “imposing” a fee, in violation of the Act.

Further, nothing in the Act reinstates a municipality’s ability to collect the former fee. The only exception to this prohibition is related to those fees which are contractually obligated through a developer’s agreements, a redeveloper’s agreement, or a general development plan, as specifically provided for in N.J.S.A. 40:55D-8.6. 

It would appear then that COAH’s advice is clearly inconsistent with the Stimulus Act, which only authorizes municipalities to continue to collect COAH fees where such fee is based on the exceptions listed above.

If your development was approved prior to July 17, 2008, and a municipality seeks to impose upon you a previously required COAH fee, Fox Rothschild advises that you review your options with a New Jersey licensed attorney, or contact this office for additional information.

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