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November 2009

COAH Update: November 24, 2009 Deadline To Seek Refund Of Fees Paid Under Statewide Non-Residential Development Fee Act

On July 27, 2009, Governor Corzine signed into law the New Jersey Economic Stimulus Act of 2009, which temporarily suspended the Statewide Non-Residential Development Fee Act, N.J.S.A. 40:55D-8.1 et seq. (the “NRDF Act”) and provided for refunds of development fees paid pursuant to the NRDF Act. In other words, if a non-residential developer received a preliminary or final land use approval after July 17, 2008, and paid a 2.5% development fee in accordance with the NRDF Act, that developer is entitled to a refund of the 2.5% fee. Moreover, if a non-residential developer received a preliminary or final land use approval prior to July 17, 2008 – whereby the developer “committed” to paying an affordable housing fee pursuant to a municipal development fee ordinance – the developer may be entitled to a partial refund if the developer ultimately paid a 2.5% fee.

The catch, of course, is that the deadline to apply for the refund is Tuesday, November 24, 2009. Accordingly, we wanted to provide you with one last reminder to the extent that you may be entitled to a refund and have not already taken action to collect the same.

The New Jersey Council On Affordable Housing (“COAH”) has prepared a Non-Residential Development Fee Claim Form (the “NRDF Claim Form") (a copy of which, along with COAH’s instructions, is attached below) that must be filled out and submitted to the appropriate authority by not later than Tuesday, November 24, 2009. Although COAH’s instructions that accompany the NRDF Claim Form indicate a filing deadline of Monday, November 30, 2009, we strongly caution that developers should comply with the Tuesday, November 24, 2009 deadline to avoid any subsequent dispute regarding compliance with the terms of the New Jersey Economic Stimulus Act of 2009.

In determining where to submit the NRDF Claim Form, COAH’s instructions provide that if the developer paid the 2.5% fee directly to the State of New Jersey, then the Form, along with a copy of the receipt or certificate of payment, must be submitted to the New Jersey Department of Community Affairs, Division of Codes and Standards. Most developers, however, would have paid the 2.5% fee directly to a municipality. Thus, COAH recommends contacting the municipal tax assessor to determine where to submit the NRDF Claim Form (along with the copy of the receipt or certificate of payment).

If you have any questions regarding your possible entitlement to seek a refund, or require any assistance in navigating the refund process, please do not hesitate to call us for guidance.

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