37. a. The provisions of this subsection shall not apply to a financial or other contribution that a developer made or committed itself to make prior to the effective date of sections 32 through 38 of P.L.2008, c.46 (C. 40:55D-8.1 through C. 40:55D-8.7). The provisions of P.L.2008, c.46 that would permit the imposition of a fee upon a developer of non-residential property shall not apply to:

(1) Non-residential property for which a site plan has received either preliminary approval, pursuant to section 34 of P.L.1975, c.291 (C. 40:55D-46), or final approval, pursuant to section 38 of P.L.1975, c.291 (C. 40:55D-50), prior to July 1, 2013; provided that a permit for the construction of the building has been issued by the local enforcing agency having jurisdiction, in accordance with section 13 of P.L.1975, c.217 (C. 52:27D-131), prior to January 1, 2015;

(2) A non-residential planned development which has received approval of a general development plan pursuant to section 5 of P.L.1987, c.129 (C. 40:55D-45.3), or a nonresidential development for which the developer has entered into a developer’s agreement pursuant to a development approval granted pursuant to P.L.1975, c.291 (C. 40:55D-1 et seq.) or for which the redeveloper has entered into a redevelopment agreement pursuant to P.L.1992, c.79 (C. 40A:12A-1 et al.) prior to the effective date of P.L.2008, c.46 (C. 52:27D-329.1 et al.); provided, however, that the general development plan, developer’s agreement, redevelopment agreement, or any development agreement pursuant to the “Municipal Land Use Law,” P.L.1975, c.291 (C. 40:55D-1 et seq.) provides that the developer or redeveloper pay a fee for affordable housing of at least one percent of the equalized assessed value of the improvements which are the subject of the development plan, developer’s agreement, or redevelopment agreement;

(3) A non-residential project that, prior to July 1, 2013, has been referred to a planning board by the State, a governing body, or other public agency for review pursuant to section 22 of P.L.1975, c.291 (C. 40:55D-31); provided that a permit for the construction of the building has been issued by the local enforcing agency having jurisdiction, in accordance with section 13 of P.L.1975, c.217 (C. 52:27D-131), prior to January 1, 2015;

(4) A non-residential property for which a site plan application has received approval by the New Jersey Meadowlands Commission, pursuant to section 13 of P.L.1968, c.404 (C. 13:17-14) prior to July 1, 2013; provided that a permit for the construction of the building has been issued by the local enforcing agency having jurisdiction, in accordance with section 13 of P.L.1975, c.217 (C. 52:27D-131), prior to January 1, 2015;

(5) Individual buildings within a nonresidential phased development that received either preliminary or final approval prior to July 1, 2013, provided that a permit for the construction of the building has been issued prior to January 1, 2015.

b. A developer may challenge non-residential development fees imposed pursuant to P.L.2008, c.46 (C. 52:27D-329.1 et al.) 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 the municipality or by the State, as the case may be. Appeals from a determination of the director may be made to the tax court in accordance with the provisions of the State Uniform Tax 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.

c. Whenever non-residential development is situated on real property that has been previously developed with a building, structure, or other improvement, the non-residential development fee shall be equal to two and a half (2.5) percent of the equalized assessed value of the land and improvements on the property where the non-residential development is situated at the time the final certificate of occupancy is issued, less the equalized assessed value of the land and improvements on the property where the non-residential development is situated, as determined by the tax assessor of the municipality at the time the developer or owner, including any previous owners, first sought approval for a construction permit, including, but not limited to, demolition permits, pursuant to the State Uniform Construction Code, or approval under the “Municipal Land Use Law,” P.L.1975, c.291 (C. 40:55D-1 et seq.). If the calculation required under this section results in a negative number, the non-residential development fee shall be zero.

Whenever the developer of a non-residential development has made or committed itself to make a financial or other contribution relating to the provision of housing affordable to low and moderate income households prior to the enactment of P.L.2008, c.46 (C. 52:27D-329.1 et al.), the non-residential development fee shall be reduced by the amount of the financial contribution and the fair market value of any other contribution made by or committed to be made by the developer. For purposes of this section, a developer is considered to have made or committed itself to make a financial or other contribution, if and only if: (1) the contribution has been transferred, including but not limited to when the funds have already been received by the municipality; (2) the developer has obligated itself to make a contribution as set forth in a written agreement with the municipality, such as a developer’s agreement; or (3) the developer’s obligation to make a contribution is set forth as a condition in a land use approval issued by a municipal land use agency pursuant to the “Municipal Land Use Law,” P.L.1975, c.291 (C. 40:55D-1 et seq.).

d. Unless otherwise provided for by law, no municipality shall be required to return a financial or any other contribution made by or committed to be made by the developer of a non-residential development prior to the enactment of P.L.2008, c.46 (C. 52:27D-329.1 et al.) relating to the provision of housing affordable to low and moderate income households, provided that the developer does not obtain an amended, modified, or new municipal land use approval with a substantial change in the non-residential development. If the developer obtains an amended, modified, or new land use approval for non-residential development, the municipality, person, or entity shall be required to return to the developer any funds or other contribution provided by the developer for the provision of housing affordable to low and moderate income households and the developer shall not be entitled to a reduction in the affordable housing development fee based upon that contribution.

e. The provisions of sections 32 through 38 of P.L.2008, c.46 (C. 40:55D-8.1 through C. 40:55D-8.7) shall not be construed in any manner as affecting the method or timing of assessing real property for property taxation purposes. The payment of a non-residential development fee shall not increase the equalized assessed value of any property.

L.2008, c.46, s.37; amended 2009, c.90, s.37; 2011, c.122, s.1.