Borough of Fair Lawn, NJ
Bergen County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Council of the Borough of Fair Lawn 12-17-1996 by Ord. No. 1659-96. Amendments noted where applicable.]
GENERAL REFERENCES
Housing Authority — See Ch. 19.
Land development — See Ch. 125.
Rent control — See Ch. 177.
The Borough of Fair Lawn has fair share obligation of 172 units, which has been adjusted by the New Jersey Council on Affordable Housing (COAH) based on certain credits and a lack of vacant land. Of its adjusted fair share of 56 units, 52 units are new construction. This chapter will apply to all developments that contain proposed low- and moderate-income units that are listed below and any future developments that may occur at the sites or in the overlay zones identified in Fair Lawn's certified HE/FSP:
McBride Site, Block 4702, Lot 1, Fair Lawn Avenue and Route 208
[Added 2-16-2010 by Ord. No. 2176-2010[1]]
A. 
Affordable housing obligation.
(1) 
This section is intended to assure that very-low, low- and moderate-income units ("affordable units") are created with controls on affordability over time and that very-low, low- and moderate-income households shall occupy these units. This section shall apply except where inconsistent with applicable law.
(2) 
The Borough of Fair Lawn Planning Board has adopted a Housing Element and Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A. 40:55D-1 et seq. The Fair Share Plan has been endorsed by the governing body. The Fair Share Plan describes the ways the Borough of Fair Lawn shall address its fair share for very-low, low- and moderate-income housing as determined by the Council on Affordable Housing (COAH) and documented in the Housing Element.
(3) 
This section implements and incorporates the Fair Share Plan and addresses the requirements of N.J.A.C. 5:97, as may be amended and supplemented.
(4) 
The Borough of Fair Lawn shall file monitoring reports with COAH in accordance with N.J.A.C. 5:96, tracking the status of the implementation of the Housing Element and Fair Share Plan. Any plan evaluation report of the Housing Element and Fair Share Plan and monitoring prepared by COAH in accordance with N.J.A.C. 5:96 shall be available to the public at the Borough of Fair Lawn Municipal Building, Municipal Clerk's Office, 8-01 Fair Lawn Avenue, New Jersey, or from COAH at 101 South Broad Street, Trenton, New Jersey and on COAH's website, www.nj.gov/dca/affiliates/coah.
B. 
Definitions. The following terms when used in this section shall have the meanings given in this subsection:
ACCESSORY APARTMENT
A self-contained residential dwelling unit with a kitchen, sanitary facilities, sleeping quarters and a private entrance, which is created within an existing home, or through the conversion of an existing accessory structure on the same site, or by an addition to an existing home or accessory building, or by the construction of a new accessory structure on the same site.
ACT
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A. 52:27D-301 et seq.).
ADAPTABLE
Constructed in compliance with the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
ADMINISTRATIVE AGENT
The entity responsible for the administration of affordable units in accordance with this section, N.J.A.C. 5:96, 5:97 and 5:80-26.1 et seq.
AFFIRMATIVE MARKETING
A regional marketing strategy designed to attract buyers and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
AFFORDABILITY AVERAGE
The average percentage of median income at which restricted units in an affordable housing development are affordable to low- and moderate-income households.
AFFORDABLE
A sales price or rent within the means of a low- or moderate-income household as defined in N.J.A.C. 5:97-9; in the case of an ownership unit, that the sales price for the unit conforms to the standards set forth in N.J.A.C. 5:80-26.6, as may be amended and supplemented, and, in the case of a rental unit, that the rent for the unit conforms to the standards set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
AFFORDABLE DEVELOPMENT
A housing development, all or a portion of which consists of restricted units.
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a one-hundred-percent affordable development.
AFFORDABLE HOUSING PROGRAM
Any mechanism in a municipal Fair Share Plan prepared or implemented to address a municipality's fair share obligation.
AFFORDABLE UNIT
A housing unit proposed or created pursuant to the Act, credited pursuant to N.J.A.C. 5:97-4, and/or funded through an affordable housing trust fund.
AGENCY
The New Jersey Housing and Mortgage Finance Agency established by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1, et seq.).
AGE-RESTRICTED UNIT
A housing unit designed to meet the needs of, and exclusively for, the residents of an age-restricted segment of the population such that:
(1) 
All the residents of the development where the unit is situated are 62 years or older; or
(2) 
At least 80% of the units are occupied by one person that is 55 years or older; or
(3) 
The development has been designated by the Secretary of the U.S. Department of Housing and Urban Development as "housing for older persons" as defined in Section 807(b)(2) of the Fair Housing Act, 42 U.S.C. § 3607.
ASSISTED LIVING RESIDENCE
A facility licensed by the New Jersey Department of Health and Senior Services to provide apartment-style housing and congregate dining and to assure that assisted living services are available when needed for four or more adult persons unrelated to the proprietor and that offers units containing, at a minimum, one unfurnished room, a private bathroom, a kitchenette and a lockable door on the unit entrance.
CERTIFIED HOUSEHOLD
A household that has been certified by an administrative agent as a low-income household or moderate-income household.
COAH
The Council on Affordable Housing, which is in, but not of, the Department of Community Affairs of the State of New Jersey, that was established under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
DCA
The State of New Jersey Department of Community Affairs.
DEFICIENT HOUSING UNIT
A housing unit with health and safety code violations that require the repair or replacement of a major system. A major system includes weatherization, roofing, plumbing (including wells), heating, electricity, sanitary plumbing (including septic systems), lead paint abatement and/or load-bearing structural systems.
DEVELOPER
Any person, partnership, association, company or corporation that is the legal or beneficial owner or owners of a lot or any land proposed to be included in a proposed development including the holder of an option to contract or purchase, or other person having an enforceable proprietary interest in such land.
DEVELOPMENT
The division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any use or change in the use of any building or other structure, or of any mining, excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to N.J.S.A. 40:55D-1 et seq.
INCLUSIONARY DEVELOPMENT
A development containing both affordable units and market rate units. This term includes, but is not necessarily limited to, new construction, the conversion of a nonresidential structure to residential and the creation of new affordable units through the reconstruction of a vacant residential structure.
LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 50% or less of the median household income.
LOW-INCOME UNIT
A restricted unit that is affordable to a low-income household.
MAJOR SYSTEM
The primary structural, mechanical, plumbing, electrical, fire protection, or occupant service components of a building which include but are not limited to weatherization, roofing, plumbing (including wells), heating, electricity, sanitary plumbing (including septic systems), lead paint abatement or load-bearing structural systems.
MARKET-RATE UNITS
Housing not restricted to low- and moderate-income households that may sell or rent at any price.
MEDIAN INCOME
The median income by household size for the applicable county, as adopted annually by COAH.
MODERATE-INCOME HOUSEHOLD
A household with a total gross annual household income in excess of 50% but less than 80% of the median household income.
MODERATE-INCOME UNIT
A restricted unit that is affordable to a moderate-income household.
NONEXEMPT SALE
Any sale or transfer of ownership other than the transfer of ownership between husband and wife; the transfer of ownership between former spouses ordered as a result of a judicial decree of divorce or judicial separation, but not including sales to third parties; the transfer of ownership between family members as a result of inheritance; the transfer of ownership through an executor's deed to a Class A beneficiary and the transfer of ownership by court order.
RANDOM SELECTION PROCESS
A process by which currently income-eligible households are selected for placement in affordable housing units such that no preference is given to one applicant over another except for purposes of matching household income and size with an appropriately priced and sized affordable unit (e.g., by lottery).
REGIONAL ASSET LIMIT
The maximum housing value in each housing region affordable to a four-person household with an income at 80% of the regional median as defined by COAH's adopted regional income limits published annually by COAH.
REHABILITATION
The repair, renovation, alteration or reconstruction of any building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C. 5:23-6.
RENT
The gross monthly cost of a rental unit to the tenant, including the rent paid to the landlord, as well as an allowance for tenant-paid utilities computed in accordance with allowances published by DCA for its Section 8 program. In assisted living residences, rent does not include charges for food and services.
RESTRICTED UNIT
A dwelling unit, whether a rental unit or ownership unit, that is subject to the affordability controls of N.J.A.C. 5:80-26.1, as may be amended and supplemented, but does not include a market-rate unit financed under UHORP or MONI.
UHAC
The Uniform Housing Affordability Controls set forth in N.J.A.C. 5:80-26.1 et seq.
VERY-LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 30% or less of the median household income.
VERY-LOW-INCOME UNIT
A restricted unit that is affordable to a very low-income household.
WEATHERIZATION
Building insulation (for attic, exterior walls and crawl space), siding to improve energy efficiency, replacement storm windows, replacement storm doors, replacement windows and replacement doors, and is considered a major system for rehabilitation.
C. 
Affordable housing programs. The Borough of Fair Lawn has determined that it will use the following mechanisms to satisfy its affordable housing obligations:
(1) 
Rehabilitation program.
(a) 
The Borough of Fair Lawn rehabilitation program shall be designed to renovate deficient housing units occupied by very-low, low- and moderate-income households such that, after rehabilitation, these units will comply with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28.
(b) 
Both owner-occupied and renter-occupied units shall be eligible for rehabilitation funds. The Borough shall participate in Bergen County's housing rehabilitation program.
(c) 
All rehabilitated units shall remain affordable to very-low, low- and moderate-income households for a period of 10 years (the control period). For owner-occupied units the control period will be enforced with a lien and for renter-occupied units the control period will be enforced with a deed restriction.
(d) 
The Borough of Fair Lawn shall dedicate an average of $10,000 for each unit to be rehabilitated through this program, reflecting the minimum hard cost of rehabilitation for each unit.
(e) 
The Borough of Fair Lawn shall adopt a resolution committing to fund any shortfall in the rehabilitation programs for the Borough of Fair Lawn.
(f) 
The Borough of Fair Lawn shall designate, subject to the approval of COAH, one or more administrative agents to administer the rehabilitation program in accordance with N.J.A.C. 5:96 and 5:97. The administrative agent(s) shall provide a rehabilitation manual for the owner occupancy rehabilitation program and a rehabilitation manual for the rental occupancy rehabilitation program to be adopted by resolution of the governing body and subject to approval of COAH. Both rehabilitation manuals shall be available for public inspection in the office of the Municipal Clerk and in the office(s) of the administrative agent(s).
(g) 
Units in a rehabilitation program shall be exempt from N.J.A.C. 5:97-9 and Uniform Housing Affordability Controls (UHAC), but shall be administered in accordance with the following:
[1] 
If a unit is vacant, upon initial rental subsequent to rehabilitation, or if a renter-occupied unit is rerented prior to the end of controls on affordability, the deed restriction shall require the unit to be rented to a low- or moderate-income household at an affordable rent and affirmatively marketed pursuant to N.J.A.C. 5:97-9 and UHAC.
[2] 
If a unit is renter-occupied, upon completion of the rehabilitation, the maximum rate of rent shall be the lesser of the current rent or the maximum permitted rent pursuant to N.J.A.C. 5:97-9 and UHAC.
[3] 
Rents in rehabilitated units may increase annually based on the standards in N.J.A.C. 5:97-9.
[4] 
Applicant and/or tenant households shall be certified as income eligible in accordance with N.J.A.C. 5:97-9 and UHAC, except that households in owner-occupied units shall be exempt from the regional asset limit.
(2) 
Inclusionary zoning.
(a) 
Phasing. In inclusionary developments the following schedule shall be followed:
Maximum Percentage of Market-Rate Units Completed
Minimum Percentage of Low- and Moderate-Income Units Completed
25
0
25+1
10
50
50
75
75
90
100
(b) 
Design. In inclusionary developments, to the extent possible, very-low-, low- and moderate-income units shall be integrated with the market units.
(c) 
Utilities. Affordable units shall utilize the same type of heating source as market units within the affordable development.
(3) 
Payments in lieu.
[Added 1-29-2013 by Ord. No. 2262-2013]
(a) 
The standards for the collection of payments in lieu of constructing affordable units shall be in accordance with COAH's rules at N.J.A.C. 5:97-6.4.
(b) 
Payments in lieu of constructing affordable units may represent fractional affordable units. The affordable housing requirement shall not be rounded.
(c) 
The amount of the payments in lieu shall be based on actual off-site project construction costs presented to the Board, or by order of the court having jurisdiction over the affordable housing obligations of the Borough, or where no such court order exists and costs have not been determined, the cost of constructing new residential units pursuant to N.J.A.C. 5:97-6.4, including the sum of development hard costs, related soft costs and developer's fees pursuant to the cost containment provisions of N.J.A.C. 5:43-2.4(a)1 through 6 and land costs equal to 25% of the first quartile of new construction cots as reported to the Homeowner Warranty Program. COAH has initially determined this number to be $180,267 per unit in COAH Region 1.
D. 
New construction. The following general guidelines apply to all newly constructed developments that contain very-low, low-and moderate-income housing units, including any currently unanticipated future developments that will provide very-low, low- and moderate-income housing units:
(1) 
Low/moderate split and bedroom distribution of affordable housing units:
(a) 
The fair share obligation shall be divided equally between low- and moderate-income units, except that where there is an odd number of affordable housing units, the extra unit shall be a low-income unit.
(b) 
In each affordable development, at least 50% of the restricted units within each bedroom distribution shall be low-income units. Thirteen percent of low-income units shall be very-low-income units.
(c) 
Affordable developments that are not age restricted shall be structured in conjunction with realistic market demands such that:
[1] 
The combined number of efficiency and one-bedroom units shall be no greater than 20% of the total affordable units;
[2] 
At least 30% of all affordable units shall be two-bedroom units;
[3] 
At least 20% of all affordable units shall be three-bedroom units; and
[4] 
The remaining units may be allocated among two- and three-bedroom units at the discretion of the developer.
(2) 
Accessibility requirements.
(a) 
The first floor of all restricted townhouse dwelling units and all restricted units in all other multistory buildings shall be subject to the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7 and 5:97-3.14.
(b) 
All restricted townhouse dwelling units and all restricted units in other multistory buildings in which a restricted dwelling unit is attached to at least one other dwelling unit shall have the following features:
[1] 
An adaptable toilet and bathing facility on the first floor;
[2] 
An adaptable kitchen on the first floor;
[3] 
An interior accessible route of travel on the first floor;
[4] 
An interior accessible route of travel shall not be required between stories within an individual unit;
[5] 
An adaptable room that can be used as a bedroom, with a door or the casing for the installation of a door, on the first floor; and
[6] 
An accessible entranceway as set forth at P.L. 2005, c. 350 (N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C. 5:23-7 and 5:97-3.14, or evidence that the Borough of Fair Lawn has collected funds from the developer sufficient to make 10% of the adaptable entrances in the development accessible:
[a] 
Where a unit has been constructed with an adaptable entrance, upon the request of a disabled person who is purchasing or will reside in the dwelling unit, an accessible entrance shall be installed.
[b] 
To this end, the builder of restricted units shall deposit funds within the Borough of Fair Lawn Affordable Housing Trust Fund sufficient to install accessible entrances in 10% of the affordable units that have been constructed with adaptable entrances.
[c] 
The funds deposited under Subsection D(2)(b)[6][b] above shall be used by the Borough of Fair Lawn for the sole purpose of making the adaptable entrance of any affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[d] 
The developer of the restricted units shall submit a design plan and cost estimate for the conversion from adaptable to accessible entrances to the Construction Official of the Borough of Fair Lawn.
[e] 
Once the Construction Official has determined that the design plan to convert the unit entrances from adaptable to accessible meets the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7 and 5:97-3.14, and that the cost estimate of such conversion is reasonable, payment shall be made to the Borough of Fair Lawn Affordable Housing Trust Fund in care of the Municipal Treasurer who shall ensure that the funds are deposited into the Affordable Housing Trust Fund and appropriately earmarked.
[f] 
Full compliance with the foregoing provisions shall not be required where an entity can demonstrate that it is site impracticable to meet the requirements. Determinations of site impracticability shall be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7 and 5:97-3.14.
(3) 
Maximum rents and sales prices.
(a) 
In establishing rents and sales prices of affordable housing units, the administrative agent shall follow the procedures set forth in UHAC and in COAH, utilizing the regional income limits established by COAH.
(b) 
The maximum rent for restricted-rental units within each affordable development shall be affordable to households earning no more than 60% of median income, and the average rent for restricted very-low, low- and moderate-income units shall be affordable to households earning no more than 52% of median income.
(c) 
The developers and/or municipal sponsors of restricted-rental units shall establish at least one rent for each bedroom type for both very-low, low-income and moderate-income units.
[1] 
At least 10% of all low- and moderate-income rental units shall be affordable to households earning no more than 30% of median income.
[2] 
NOTE: N.J.S.A. 52:27D-329.1 (P.L. 2008, c. 46) includes the requirement that all municipal fair share plans provide for the reservation of at least 13% of the affordable units for very-low-income households, i.e., households earning 30% or less of the median income.
(d) 
The maximum sales price of restricted-ownership units within each affordable development shall be affordable to households earning no more than 70% of median income, and each affordable development must achieve an affordability average of 55% for restricted-ownership units; in achieving this affordability average, moderate-income ownership units must be available for at least three different prices for each bedroom type, and low-income-ownership units must be available for at least two different prices for each bedroom type.
(e) 
In determining the initial sales prices and rents for compliance with the affordability average requirements for restricted units other than assisted living facilities, the following standards shall be used:
[1] 
A studio shall be affordable to a one-person household;
[2] 
A one-bedroom unit shall be affordable to a one-and-one-half-person household;
[3] 
A two-bedroom unit shall be affordable to a three-person household;
[4] 
A three-bedroom unit shall be affordable to a four-and-one-half-person household; and
[5] 
A four-bedroom unit shall be affordable to a six-person household.
(f) 
In determining the initial rents for compliance with the affordability average requirements for restricted units in assisted living facilities, the following standards shall be used:
[1] 
A studio shall be affordable to a one-person household;
[2] 
A one-bedroom unit shall be affordable to a one-and-one-half-person household; and
[3] 
A two-bedroom unit shall be affordable to a two-person household or to two one-person households.
(g) 
The initial purchase price for all restricted-ownership units shall be calculated so that the monthly carrying cost of the unit, including principal and interest (based on a mortgage loan equal to 95% of the purchase price and the Federal Reserve H.15 rate of interest), taxes, homeowner and private mortgage insurance and condominium or homeowner association fees do not exceed 28% of the eligible monthly income of the appropriate size household as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented; provided, however, that the price shall be subject to the affordability average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(h) 
The initial rent for a restricted-rental unit shall be calculated so as not to exceed 30% of the eligible monthly income of the appropriate household size as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented; provided, however, that the rent shall be subject to the affordability average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(i) 
The price of owner-occupied low- and moderate-income units may increase annually based on the percentage increase in the regional median income limit for each housing region. In no event shall the maximum resale price established by the administrative agent be lower than the last recorded purchase price.
(j) 
The rent of low- and moderate-income units may be increased annually based on the percentage increase in the Housing Consumer Price Index for the United States. This increase shall not exceed 9% in any one year. Rents for units constructed pursuant to low-income housing tax credit regulations shall be indexed pursuant to the regulations governing low-income housing tax credits.
(k) 
Utilities. tenant-paid utilities that are included in the utility allowance shall be so stated in the lease and shall be consistent with the utility allowance approved by DCA for its Section 8 program.
E. 
The following general guidelines apply to all developments that contain very-low, low- and moderate-income housing units, including any currently unanticipated future developments that will provide low- and moderate-income housing units:
(1) 
Affirmative marketing requirements.
(a) 
The Borough of Fair Lawn shall adopt by resolution an affirmative marketing plan, subject to approval of COAH, compliant with N.J.A.C. 5:80-26.15, as may be amended and supplemented.
(b) 
The affirmative marketing plan is a regional marketing strategy designed to attract buyers and/or renters of all majority and minority groups, regardless of race, creed, color, national origin, ancestry, marital or familial status, gender, affectional or sexual orientation, disability, age or number of children, to housing units which are being marketed by a developer, sponsor or owner of affordable housing. The affirmative marketing plan is also intended to target those potentially eligible persons who are least likely to apply for affordable units in that region. It is a continuing program that directs all marketing activities toward COAH Housing Region 1 and covers the period of deed restriction.
(c) 
The affirmative marketing plan shall provide a regional preference for all households that live and/or work in COAH Housing Region 1 comprised of Bergen, Hudson, Passaic and Sussex Counties.
(d) 
The administrative agent designated by the Borough of Fair Lawn shall assure the affirmative marketing of all affordable units consistent with the affirmative marketing plan for the municipality.
(e) 
In implementing the affirmative marketing plan, the administrative agent shall provide a list of counseling services to very-low, low- and moderate-income applicants on subjects such as budgeting, credit issues, mortgage qualification, rental lease requirements, and landlord/tenant law.
(f) 
The affirmative marketing process for available affordable units shall begin at least four months prior to the expected date of occupancy.
(g) 
The costs of advertising and affirmative marketing of the affordable units shall be the responsibility of the developer, sponsor or owner, unless otherwise determined or agreed to by the Borough of Fair Lawn.
(2) 
Occupancy standards.
(a) 
In referring certified households to specific restricted units, to the extent feasible, and without causing an undue delay in occupying the unit, the administrative agent shall strive to:
[1] 
Provide an occupant for each bedroom;
[2] 
Provide children of different sex with separate bedrooms; and
[3] 
Prevent more than two persons from occupying a single bedroom.
(b) 
Additional provisions related to occupancy standards (if any) shall be provided in the municipal operating manual.
(3) 
Control periods for restricted-ownership units and enforcement mechanisms.
(a) 
Control periods for restricted-ownership units shall be in accordance with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each restricted-ownership unit shall remain subject to the requirements of this section until the Borough of Fair Lawn elects to release the unit from such requirements, however, and prior to such an election, a restricted-ownership unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at least 30 years.
(b) 
The affordability control period for a restricted-ownership unit shall commence on the date the initial certified household takes title to the unit.
(c) 
Prior to the issuance of the initial certificate of occupancy for a restricted-ownership unit and upon each successive sale during the period of restricted ownership, the administrative agent shall determine the restricted price for the unit and shall also determine the nonrestricted, fair-market value of the unit based on either an appraisal or the unit's equalized assessed value.
(d) 
At the time of the first sale of the unit, the purchaser shall execute and deliver to the administrative agent a recapture note obligating the purchaser (as well as the purchaser's heirs, successors and assigns) to repay, upon the first nonexempt sale after the unit's release from the requirements of this section, an amount equal to the difference between the unit's nonrestricted fair-market value and its restricted price, and the recapture note shall be secured by a recapture lien evidenced by a duly recorded mortgage on the unit.
(e) 
The affordability controls set forth in this section shall remain in effect despite the entry and enforcement of any judgment of foreclosure with respect to restricted-ownership units.
(f) 
A restricted-ownership unit shall be required to obtain a continuing certificate of occupancy or a certified statement from the Construction Official stating that the unit meets all code standards upon the first transfer of title that follows the expiration of the applicable minimum control period provided under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
(4) 
Price restrictions for restricted-ownership units, homeowner association fees and resale prices. Price restrictions for restricted-ownership units shall be in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented, including:
(a) 
The initial purchase price for a restricted-ownership unit shall be approved by the administrative agent.
(b) 
The administrative agent shall approve all resale prices, in writing and in advance of the resale, to assure compliance with the foregoing standards.
(c) 
The method used to determine the condominium association fee amounts and special assessments shall be indistinguishable between the low- and moderate-income-unit owners and the market-unit owners.
(d) 
The owners of restricted-ownership units may apply to the administrative agent to increase the maximum sales price for the unit on the basis of capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household or the addition of a bathroom.
(5) 
Buyer income eligibility.
(a) 
Buyer income eligibility for restricted-ownership units shall be in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented, such that low-income-ownership units shall be reserved for households with a gross household income less than or equal to 50% of median income and moderate-income-ownership units shall be reserved for households with a gross household income less than 80% of median income.
(b) 
The administrative agent shall certify a household as eligible for a restricted-ownership unit when the household is a low-income household or a moderate-income household, as applicable to the unit, and the estimated monthly housing cost for the particular unit (including principal, interest, taxes, homeowner and private mortgage insurance and condominium or homeowner association fees, as applicable) does not exceed 33% of the household's certified monthly income.
(6) 
Limitations on indebtedness secured by ownership unit; subordination.
(a) 
Prior to incurring any indebtedness to be secured by a restricted-ownership unit, the administrative agent shall determine in writing that the proposed indebtedness complies with the provisions of this section.
(b) 
With the exception of original purchase money mortgages, during a control period neither an owner nor a lender shall at any time cause or permit the total indebtedness secured by a restricted-ownership unit to exceed 95% of the maximum allowable resale price of that unit, as such price is determined by the administrative agent in accordance with N.J.A.C. 5:80-26.6(b).
(7) 
Control periods for restricted-rental units.
(a) 
Control periods for restricted-rental units shall be in accordance with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and each restricted-rental unit shall remain subject to the requirements of this section until the Borough of Fair Lawn elects to release the unit from such requirements pursuant to action taken in compliance with N.J.A.C. 5:80-26.1, as may be amended and supplemented, and prior to such an election, a restricted-rental unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at least 30 years.
(b) 
Deeds of all real property that include restricted-rental units shall contain deed restriction language. The deed restriction shall have priority over all mortgages on the property, and the deed restriction shall be filed by the developer or seller with the records office of the County of Bergen. A copy of the filed document shall be provided to the administrative agent within 30 days of the receipt of a certificate of occupancy.
(c) 
A restricted-rental unit shall remain subject to the affordability controls of this section, despite the occurrence of any of the following events:
[1] 
Sublease or assignment of the lease of the unit;
[2] 
Sale or other voluntary transfer of the ownership of the unit; or
[3] 
The entry and enforcement of any judgment of foreclosure.
(8) 
Price restrictions for rental units; leases.
(a) 
A written lease shall be required for all restricted-rental units, except for units in an assisted living residence, and tenants shall be responsible for security deposits and the full amount of the rent as stated on the lease. A copy of the current lease for each restricted-rental unit shall be provided to the administrative agent.
(b) 
No additional fees or charges shall be added to the approved rent (except, in the case of units in an assisted living residence, to cover the customary charges for food and services) without the express written approval of the administrative agent.
(c) 
Application fees (including the charge for any credit check) shall not exceed 5% of the monthly rent of the applicable restricted unit and shall be payable to the administrative agent to be applied to the costs of administering the controls applicable to the unit as set forth in this section.
(9) 
Tenant income eligibility.
(a) 
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13, as may be amended and supplemented, and shall be determined as follows:
[1] 
Very-low-income rental units shall be reserved for households with a gross household income less than or equal to 30% of median income.
[2] 
Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of median income.
[3] 
Moderate-income rental units shall be reserved for households with a gross household income less than 80% of median income.
(b) 
The administrative agent shall certify a household as eligible for a restricted-rental unit when the household is a very-low-income, low-income household or a moderate-income household, as applicable to the unit, and the rent proposed for the unit does not exceed 35% (40% for age-restricted units) of the household's eligible monthly income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended and supplemented; provided, however, that this limit may be exceeded if one or more of the following circumstances exists:
[1] 
The household currently pays more than 35% (40% for households eligible for age-restricted units) of its gross household income for rent, and the proposed rent will reduce its housing costs;
[2] 
The household has consistently paid more than 35% (40% for households eligible for age-restricted units) of eligible monthly income for rent in the past and has proven its ability to pay;
[3] 
The household is currently in substandard or overcrowded living conditions;
[4] 
The household documents the existence of assets with which the household proposes to supplement the rent payments; or
[5] 
The household documents proposed third-party assistance from an outside source such as a family member in a form acceptable to the administrative agent and the owner of the unit.
(c) 
The applicant shall file documentation sufficient to establish the existence of the circumstances in Subsection E(9)(b)[1] through [5] above with the administrative agent, who shall counsel the household on budgeting.
F. 
Administration.
(1) 
The position of Municipal Housing Liaison (MHL) for the Borough of Fair Lawn is established by this section. The Borough Council shall make the actual appointment of the MHL by means of a resolution.
(a) 
The MHL must be either a full-time or part-time employee of Borough of Fair Lawn.
(b) 
The person appointed as the MHL must be reported to COAH for approval.
(c) 
The MHL must meet all COAH requirements for qualifications, including initial and periodic training.
(d) 
The Municipal Housing Liaison shall be responsible for oversight and administration of the affordable housing program for the Borough of Fair Lawn, including the following responsibilities which may not be contracted out to the administrative agent:
[1] 
Serving as the municipality's primary point of contact for all inquiries from the state, affordable housing providers, administrative agents and interested households;
[2] 
The implementation of the affirmative marketing plan and affordability controls;
[3] 
When applicable, supervising any contracting administrative agent;
[4] 
Monitoring the status of all restricted units in the Borough of Fair Lawn Fair Share Plan;
[5] 
Compiling, verifying and submitting annual reports as required by COAH;
[6] 
Coordinating meetings with affordable housing providers and administrative agents, as applicable; and
[7] 
Attending continuing education opportunities on affordability controls, compliance monitoring and affirmative marketing as offered or approved by COAH.
(2) 
The Borough of Fair Lawn shall designate by resolution of the Borough Council, subject to the approval of COAH, one or more administrative agents to administer newly constructed affordable units in accordance with N.J.A.C. 5:96, 5:97 and UHAC.
(3) 
An operating manual shall be provided by the administrative agent(s) to be adopted by resolution of the governing body and subject to approval of COAH. The operating manuals shall be available for public inspection in the office of the Municipal Clerk and in the office(s) of the administrative agent(s).
(4) 
The administrative agent shall perform the duties and responsibilities of an administrative agent as are set forth in UHAC and which are described in full detail in the operating manual, including those set forth in N.J.A.C. 5:80-26.14, 5:80-26.16 and 5:80-26.18 thereof, which includes:
(a) 
Attending continuing education opportunities on affordability controls, compliance monitoring, and affirmative marketing as offered or approved by COAH;
(b) 
Affirmative marketing;
(c) 
Household certification;
(d) 
Affordability controls;
(e) 
Records retention;
(f) 
Resale and rerental;
(g) 
Processing requests from unit owners; and
(h) 
Enforcement, though the ultimate responsibility for retaining controls on the units rests with the municipality.
(i) 
The administrative agent shall have authority to take all actions necessary and appropriate to carry out its responsibilities hereunder.
G. 
Enforcement of affordable housing regulations.
(1) 
Upon the occurrence of a breach of any of the regulations governing the affordable unit by an owner, developer or tenant, the municipality shall have all remedies provided at law or equity, including but not limited to foreclosure, tenant eviction, municipal fines, a requirement for household recertification, acceleration of all sums due under a mortgage, recoupment of any funds from a sale in the violation of the regulations, injunctive relief to prevent further violation of the regulations, entry on the premises, and specific performance.
(2) 
After providing written notice of a violation to an owner, developer or tenant of a low- or moderate-income unit and advising the owner, developer or tenant of the penalties for such violations, the municipality may take the following action against the owner, developer or tenant for any violation that remains uncured for a period of 60 days after service of the written notice:
(a) 
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11 alleging a violation, or violations, of the regulations governing the affordable housing unit. If the owner, developer or tenant is found by the court to have violated any provision of the regulations governing affordable housing units, the owner, developer or tenant shall be subject to one or more of the following penalties, at the discretion of the court:
[1] 
A fine of not more than $1,000 or imprisonment for a period not to exceed 90 days, or both. Each and every day that the violation continues or exists shall be considered a separate and specific violation of these provisions and not as a continuing offense;
[2] 
In the case of an owner who has rented his or her very-low, low- or moderate-income unit in violation of the regulations governing affordable housing units, payment into the Borough of Fair Lawn Affordable Housing Trust Fund of the gross amount of rent illegally collected;
[3] 
In the case of an owner who has rented his or her very-low, low- or moderate-income unit in violation of the regulations governing affordable housing units, payment of an innocent tenant's reasonable relocation costs, as determined by the court.
(b) 
The municipality may file a court action in the Superior Court seeking a judgment, which would result in the termination of the owner's equity or other interest in the unit, in the nature of a mortgage foreclosure. Any judgment shall be enforceable as if the same were a judgment of default of the first purchase money mortgage and shall constitute a lien against the low- and moderate-income unit.
(3) 
Such judgment shall be enforceable, at the option of the municipality, by means of an execution sale by the Sheriff, at which time the very-low, low- and moderate-income unit of the violating owner shall be sold at a sale price which is not less than the amount necessary to fully satisfy and pay off any first purchase money mortgage and prior liens and the costs of the enforcement proceedings incurred by the municipality, including attorney's fees. The violating owner shall have the right to possession terminated as well as the title conveyed pursuant to the Sheriff's sale.
(4) 
The proceeds of the Sheriff's sale shall first be applied to satisfy the first purchase money mortgage lien and any prior liens upon the low- and moderate-income unit. The excess, if any, shall be applied to reimburse the municipality for any and all costs and expenses incurred in connection with either the court action resulting in the judgment of violation or the Sheriff's sale. In the event that the proceeds from the Sheriff's sale are insufficient to reimburse the municipality in full as aforesaid, the violating owner shall be personally responsible for and to the extent of such deficiency, in addition to any and all costs incurred by the municipality in connection with collecting such deficiency. In the event that a surplus remains after satisfying all of the above, such surplus, if any, shall be placed in escrow by the municipality for the owner and shall be held in such escrow for a maximum period of two years or until such earlier time as the owner shall make a claim with the municipality for such. Failure of the owner to claim such balance within the two-year period shall automatically result in a forfeiture of such balance to the municipality. Any interest accrued or earned on such balance while being held in escrow shall belong to and shall be paid to the municipality, whether such balance shall be paid to the owner or forfeited to the municipality.
(5) 
Foreclosure by the municipality due to violation of the regulations governing affordable housing units shall not extinguish the restrictions of the regulations governing affordable housing units as the same apply to the low- and moderate-income unit. Title shall be conveyed to the purchaser at the Sheriff's sale, subject to the restrictions and provisions of the regulations governing the affordable housing unit. The owner determined to be in violation of the provisions of this plan and from whom title and possession were taken by means of the Sheriff's sale shall not be entitled to any right of redemption.
(6) 
If there are no bidders at the Sheriff's sale, or if insufficient amounts are bid to satisfy the first purchase money mortgage and any prior liens, the municipality may acquire title to the low- and moderate-income unit by satisfying the first purchase money mortgage and any prior liens and crediting the violating owner with an amount equal to the difference between the first purchase money mortgage and any prior liens and costs of the enforcement proceedings, including legal fees and the maximum resale price for which the low- and moderate-income unit could have been sold under the terms of the regulations governing affordable housing units. This excess shall be treated in the same manner as the excess which would have been realized from an actual sale as previously described.
(7) 
Failure of the very-low, low- and moderate-income unit to be either sold at the Sheriff's sale or acquired by the municipality shall obligate the owner to accept an offer to purchase from any qualified purchaser which may be referred to the owner by the municipality, with such offer to purchase being equal to the maximum resale price of the very-low, low- and moderate-income unit as permitted by the regulations governing affordable housing units.
(8) 
The owner shall remain fully obligated, responsible and liable for complying with the terms and restrictions of governing affordable housing units until such time as title is conveyed from the owner.
H. 
Affirmative marketing plan. The affirmative marketing plan is a regional marketing strategy designed to attract buyers and/or renters of all majority and minority groups, regardless of sex, age or number of children, to housing units which are being marketed by a developer/sponsor, municipality and/or designated administrative agency of affordable housing. The plan will address the requirements of N.J.A.C. 5:96 et seq. In addition, the plan prohibits discrimination in the sale, rental, financing or other services related to housing on the basis of race, color, sex, religion, handicap, age, familial status/size or national origin. The Borough of Fair Lawn is in the housing region consisting of Bergen, Passaic, Hudson and Sussex Counties. The affirmative marketing program is a continuing program and will meet the following requirements:
(1) 
All newspaper articles, announcements and requests for applications for low- and moderate-income units will appear in the Bergen County Record.
(2) 
The primary marketing will take the form of at least one press release sent to the above publication and a paid display advertisement in the above publication. Additional advertising and publicity will be on an as-needed basis. The advertisement will include the:
(a) 
Street address;
(b) 
Direction to housing units;
(c) 
Number of bedrooms per unit;
(d) 
Range of selling prices/rents;
(e) 
Size of units;
(f) 
Household income limits; and
(g) 
Location of applications including business hours and where/how applications may be obtained.
(3) 
All newspaper articles, announcements and requests for applications for low- and moderate-income housing will appear in the Bergen County Record and The Herald News, and may appear on the local cable television station.
(4) 
The following is the location of applications, brochure(s), sign(s), and/or poster(s) used as part of the affirmative marketing program including specific employment centers within the region:
(a) 
Municipal building.
(b) 
Municipal library.
(c) 
Developer's sales/rental office on site.
(d) 
Senior center.
(e) 
Libraries in Bergen, Passaic, Hudson and Sussex Counties.
(5) 
The following is a list of community organization(s) that will aid in the affirmative marketing program with particular emphasis on contacts that will reach out to groups that are least likely to apply for housing within the region: County Offices on Aging in Bergen, Passaic, Hudson and Sussex Counties.
(6) 
The following is a description of the random selection method that will be used to select occupants of low- and moderate-income housing: There will be a period in which to complete and submit applications. The names of households that have completed applications in that time frame and who are income eligible will be randomly selected to see the apartments. Each landlord will select the renter for his/her unit from the eligible list of applicants provided by the housing administrator.
(7) 
Fair Lawn is ultimately responsible for administering the affirmative marketing program. Fair Lawn has delegated this responsibility to an affordable housing consultant to be appointed on an annual basis which will income qualify low- and moderate-income households; place income-eligible households in very-low, low- and moderate-income units upon initial occupancy; provide for the initial occupancy of very-low, low- and moderate-income units with income-qualified households; continue to qualify households for reoccupancy of units as they become vacant during the period of affordability controls; assist with advertising and outreach to low- and moderate-income households if in contract; and enforce the terms of the deed restriction and mortgage loan as per the Uniform Housing Affordability Controls (UHAC).
(8) 
The Affordable Housing Administrator will act as liaison to the affordable housing consultant. The affordable housing consultant will provide counseling services to very-low, low- and moderate-income applicants on subjects such as budgeting, credit issues, mortgage qualification, responsibilities of home ownership, rental lease requirements and landlord/tenant law. Applications will be mailed to prospective applicants upon request. Additionally, applications will be sent to the chief administrative employees of each of the following agencies in the counties of Bergen, Passaic, Hudson and Sussex:
(a) 
County Department of Human and Social Services.
(b) 
County Department of Community Development.
(9) 
Households who live or work in the COAH-established housing region may be given preference for rental units constructed within that housing region. Applicants living outside the housing region will have an equal opportunity for units after regional applicants have been initially serviced. Fair Lawn intends to comply with UHAC.
(10) 
Developers of low- and moderate-income housing units may assist in the marketing of the affordable units in their respective developments if so designated by Fair Lawn.
(11) 
The marketing program will commence at least 120 days before the issuance of either temporary or permanent certificates of occupancy. The marketing program will continue until all low- and moderate-income housing units are initially occupied and for as long as affordable units are deed restricted and occupancy or reoccupancy of units continues to be necessary.
(12) 
Fair Lawn will comply with monitoring and reporting requirements as per N.J.A.C. 5:97-7.9.
I. 
Enforcement of affordable housing regulations.
(1) 
By accepting state funds for affordable housing purposes, or by submitting to the jurisdiction of COAH, a municipality shall be deemed to have delegated to its administrative agent the day-to-day responsibility for implementing practices and procedures designed to ensure effective compliance with the controls set forth in this section. The municipality, however, shall retain the ultimate responsibility for ensuring effective compliance with this section.
(2) 
Administrative agent practices and procedures shall include, but shall not necessarily be limited to, the following:
(a) 
Securing from all developers and sponsors of restricted units, at the earliest point of contact in the processing of the project or development, written acknowledgement of the requirement that no restricted unit can be offered, or in any other way committed, to any person, other than a household duly certified to the unit by the administrative agent.
(b) 
Requiring that all certified applicants for restricted units execute a certificate substantially in the form, as applicable, of either the ownership or rental certificates.
(c) 
The posting annually in all rental properties, including two-family homes, of a notice as to the maximum permitted rent together with the telephone number of the administrative agent where complaints of excess rent can be made.
(3) 
If the unit is owner-occupied, the unit may be resold only to a household that has been approved in advance and in writing by the administrative agent.
(4) 
No sale of the unit shall be lawful, unless approved in advance and in writing by the administrative agent, and no sale shall be for a consideration greater than regulated maximum permitted resale price, as determined by the administrative agent.
(5) 
No refinancing, equity loan, secured letter of credit, or any other mortgage obligation or other debt secured by the unit may be incurred except as approved in advance and in writing by the administrative agent, and at no time will the administrative agent approve any debt, if incurring the debt would make the total of all such debt exceed 95% of the then applicable maximum permitted resale price.
(6) 
The owner of the unit shall at all times maintain the unit as his or her principal place of residence, which shall be defined as residing at the unit at least 260 days out of each calendar year.
(7) 
Except as set forth in N.J.A.C. 5:80-26.18(c)4vii, at no time shall the owner of the unit lease or rent the unit to any person or persons, except on a short-term hardship basis, as approved in advance and in writing by the administrative agent.
(8) 
The maximum permitted rent chargeable to affordable tenants is as stated in the notice required to be posted in accordance with N.J.A.C. 5:80-26.18(d)3 of this section, a copy of which shall be enclosed, and copies of all leases for affordable rental units must be submitted annually to the administrative agent.
(9) 
Banks and other lending institutions are prohibited from issuing any loan secured by owner-occupied real property subject to the affordability controls set forth in this section, if such loan would be in excess of amounts permitted by the restriction documents recorded in the deed or mortgage book in the county in which the property is located.
J. 
Appeals. Appeals from all decisions of an administrative agent designated pursuant to this section shall be filed in writing with the Executive Director of COAH.
[1]
Editor's Note: This ordinance also repealed former § 49-2, Affirmative marking plan.
[1]
Editor's Note: Former §§ 4-3 through 4-11, which contained affordable housing provisions, as amended, were repealed 2-16-2010 by Ord. No. 2176-2010. See now § 49-2, Affordable housing requirements.
[Added 2-11-1997 by Ord. No. 1666-97]
A. 
Land. The land to which these zoning changes shall apply is approximately 20 acres in size, located at the northeast corner of Route 208 and Fair Lawn Avenue, and designated as Block 4702, Lot 1 on the official tax map of the Borough (“site”). The site shall be designated as the CR Combined Residential District on the Zoning Map of the Borough of Fair Lawn.
B. 
Zoning; uses.
(1) 
The zoning uses and the bulk requirements set forth herein shall apply to the site.
(2) 
Multiple-family dwellings shall be permitted in this zone. All other uses shall be prohibited.
(3) 
Uses and structures customarily incidental to multiple-family dwellings shall be permitted. For this site, such uses shall also include a swimming pool, recreation facilities and structures, and a structure not to exceed 3,000 square feet for recreation, meeting or other similar purposes, and for storage purposes.
C. 
Density. The maximum density of the site shall be 17.65 dwelling units per acre. While the site is approximately 20 acres in size, the maximum number of dwelling units that may be constructed on the site shall not exceed 352 units.
D. 
Inclusionary component.
(1) 
The development shall include 52 units of housing affordable to low- and moderate-income households. These units shall be equally divided between low- and moderate-income units.
(2) 
Approximately 25% of the affordable units, or 14 units, shall be age restricted in accordance with COAH's regulations defining “age restricted,” as they may be amended from time to time. These units shall be one bedroom in size.
(3) 
While it is contemplated that all units in the development shall be rental units, all affordable housing units shall be and remain rental units, under applicable COAH regulations as they may be amended from time to time.
(4) 
The 52 affordable housing units shall be integrated with the market-rate units throughout the development and within the several buildings in which they shall be located.
E. 
Affordable housing unit types.
(1) 
Eight units shall be three bedrooms in size. Eighteen units shall be two bedrooms in size. The remaining 26 affordable housing units, including the 14 units restricted to senior citizens, shall be one bedroom in size.
(2) 
There shall be no bedroom distribution restrictions imposed on the market-rate units.
F. 
Bulk requirements. The site and the development thereon shall be subject to the bulk requirements of the existing R-3 Zone District, except as modified below:
(1) 
Height.
(a) 
Up to 156 units, or approximately 45% of the maximum number of units that may be constructed on the site, may be located in three-story buildings. No more than 13 three-story buildings shall be constructed on the site as part of the development. The maximum height of the three-story buildings shall be 40 feet. The height shall be measured from the center line of the internal roadway opposite and in front of each of the centers of the building walls facing the internal roadways to the highest point of the roof surface, regardless of design, shape or pitch of the roof.
(b) 
The remaining units shall be located in two-story buildings. The maximum height of the two-story buildings in this development shall be 35 feet. The height shall be measured from the center line of the internal roadways in front of each of the buildings.
(c) 
All buildings in the development shall be oriented in a manner and subject to the review of the Planning Board to insure the promotion of desirable aesthetic conditions and a desirable visual environment both from outside and from within the development.
(2) 
Impervious coverage. The impervious coverage of the site shall not exceed 70%. For this development, impervious coverage shall mean those items as defined in the Fair Lawn Zoning Ordinance[1] and shall also include outdoor storage areas, decks, patios and sidewalks.
[1]
Editor’s Note: See Ch. 125, Land Development.
(3) 
Off-street loading. The requirements of the Fair Lawn Zoning Ordinance regarding off-street loading shall not be applicable to the development.
(4) 
Parking stalls.
(a) 
Parking stalls shall be not less than nine by 18 feet in size.
(b) 
The development shall also provide a sufficient number of handicapped parking spaces as required by applicable law.
(5) 
Off-street parking.
(a) 
There shall be 2.2 off-street parking spaces provided for each non-age-restricted unit in the development. However, only one off-street parking space need be provided for each one-bedroom age-restricted unit.
(b) 
No more than 70 off-street parking spaces may be located within the perimeter setback areas of the site. The parking layout shall be subject to the review and approval of the Planning Board.
(6) 
Yard (fences). The prohibition contained in the Fair Lawn Zoning Ordinance shall be modified so that landscaping designed for screening or buffers may exceed six feet in height, as requested by the developer and determined by the Planning Board in connection with its site plan review of any development application for the site.
G. 
Expedited review; COAH amendments; power of Planning Board.
(1) 
The Borough shall provide for an expedited site plan review for the contemplated: development, as set forth herein. The developer may submit to the Planning Board a conceptual application for site plan review; provided, however, that any affirmative action or approval by the Planning Board shall be conditioned upon the Borough's obtaining substantive certification from COAH in accordance with Subsection H herein.
(2) 
The Borough agrees to introduce and adopt the amendments to its Zoning Ordinance within the time established by COAH, but in no case later than 45 days from the date of substantive certification.
(3) 
Nothing in this section shall restrict or limit the powers of the Planning Board of Fair Lawn in the discharge of its statutory responsibilities, including its review of and granting or denial of a development application for the site, under the Municipal Land Use Law, the ordinances and codes of the Borough of Fair Lawn, other state or federal regulatory requirements, or any other applicable law.
H. 
Substantive certification. This section shall not become effective without the granting of substantive certification by COAH of the HE/FSP of Fair Lawn, as previously submitted, except as modified by COAH's recognition that the realistic development potential for the Borough shall be based on the creation of 52 units of affordable housing on the site and that the difference between the 52 affordable units created and the up to 60 potential units on this site, earlier projected in the Borough's HE/FSP and other submissions in connection therewith, shall be the subject of a downward adjustment of Fair Lawn's fair share obligation in connection with the granting of substantive certification.
I. 
Application by the developer. This section shall be subject to the developer submitting a development application for multifamily inclusionary development of the site to the Fair Lawn Planning Board within nine months of the granting of substantive certification and of the Borough's adoption and effective date of this section.
J. 
Representation of ownership interest and involvement in development. In connection with any development application for the site, the developer and the applicant shall provide evidence of their compliance with the terms of the mediation agreement entered into by the Borough of Fair Lawn regarding this site that pertain to representation of ownership and interest and involvement in development.
K. 
Preliminary site plan review and approval process.
(1) 
Preliminary site plans shall be submitted to the Planning Board. These plans shall be submitted in accordance with the existing codes and ordinances of the Borough of Fair Lawn, except as modified herein. The site plan and other engineering documents to be submitted may be submitted in tentative form for preliminary and conceptual review.
(2) 
Within 30 days following the submission of a preliminary site plan, the Planning Board, through and including its staff and consultants, shall provide the developer with a written determination as to whether its application is complete. If the application is considered incomplete, the developer and the applicant shall be notified in writing within such thirty-day period as to the specific additional materials required to complete the application.
(3) 
If and whenever the application is deemed incomplete, upon the submission of the additional required material, the Planning Board, through and including its staff, shall determine and notify the developer and the applicant within 10 days of the date that the additional material is submitted as to whether its application is complete.
(4) 
Within 45 days from the date an application is deemed complete, the Planning Board staff and other municipal agencies, whose review of the site plan is required by law, ordinance, statute or regulation, shall file their reports, if any, with the Planning Board concerning the application. Within 15 days of the receipt of all reports, the Planning Board shall publish a notice of a public hearing to be held at the next regularly scheduled Planning Board meeting. Such notice shall be published at the expense of the developer and the applicant.
(5) 
Preliminary approval. The Planning Board shall grant, grant with conditions, or deny preliminary approval of a site plan within 22 days of the date of the closing of the public hearing.
(6) 
Applications for preliminary approval shall be processed within the times set forth in the activity timetable below:
Activity
Timetable
Application made to Planning Board
Date submitted
Planning Board staff provides developer with written determination as to whether application is complete
30 days from date submitted
In the event that the Planning Board staff determines the application to be incomplete, the Planning Board staff shall clearly define what material will be required in order to deem the application complete. Upon submission of this material, the Planning Board staff shall provide developer with written determination as to whether the application is complete
10 days from date additional material is submitted
Application is found to be complete by the Planning Board staff
Date completed
Planning Board staff and agencies file their reports with the Planning Board. All documentation is made available to the public
45 days from date completed ("Receipt of Reports Date")
Publication of notice of public hearing
Within 15 days of the Receipt of Reports Date (“Publication Date”)
Planning Board holds public hearing
At the next regularly scheduled Planning Board meeting
Planning Board grants preliminary approval
Within 22 days of the closing of the public hearing
(7) 
Final plan approval process. Applications for final approval shall be processed within the time frame set forth in the activity timetable below:
Activity
Timetable
Application made to Planning Board
Date submitted
Planning Board staff provides developer with written determination as to whether application is complete
30 days from date submitted
Application is found to be complete by the Planning Board staff
Date complete
Planning Board staff and agencies file their reports with the Planning Board. All documentation is made available to the public
45 days from date complete (“Receipt of Reports Date”)
Publication of notice
Within 15 days of Receipt of Reports Date (“Publication Date”)
Planning Board holds public hearing
At the next regularly scheduled Planning Board meeting
Planning Board grants final approval
Within 22 days of receipt of all reports
(8) 
The developer or the applicant may elect to submit the final construction plans for all or sections of the development of the site to the Fair Lawn Planning Board Engineer for his approval before submission of final plan application so that site improvements (excluding buildings) may begin before final approval. This approval by the Planning Board Engineer shall take place within 30 days from the date of submission of the construction plans.
(9) 
Special meetings may be requested by the developer or the applicant in connection with its development application. Upon such request, the Planning Board shall schedule a reasonable number of special meetings, but in no event fewer than two special meetings per month, at the developer's or applicant's sole expense.
[Added 4-18-2005 by Ord. No. 2012-2005]
A. 
Land. The land to which these zoning changes shall apply abuts the east and west side of River Road between the intersections of Fair Lawn Avenue and Berdan Avenue. These lands are designated as Blocks 5610, Lots 23 through 44.01; Block 5611, Lots 42 through 81; Block 5612, Lots 1 through 22, 48, 49 and 50; Block 5613, Lots 1 through 17; Block 5616, Lot 1; Block 5626, Lot 1; Block 5628, Lots 19, 20 and 22 on the official tax map of the Borough ("River Road Site"). The area shall be designated as the B-4-OR Business Overlay Residential District or B-5-OR Business Overlay Residential District on the Zoning Map of the Borough of Fair Lawn.
B. 
Zoning. In addition to the B-4 River Road Business District and B-5 River Road Business District zoning on the River Road site, there shall be an affordable housing set-aside for each residential development on the River Road site, developed at densities of six or more dwelling units per gross acre. Each such development shall include a twenty-percent set-aside for affordable housing if sales housing is produced or a fifteen-percent set-aside if rental housing is produced.
C. 
Inclusionary component. All affordable housing units in each residential development on the River Road site shall be divided equally between low- and moderate-income units.
D. 
Nothing in this section shall restrict or limit the powers of the Planning Board of Fair Lawn and discharge of its statutory responsibilities, including its review of and granting or denial of a development application for the site, under the Municipal Land Use Law, the ordinances and codes of the Borough of Fair Lawn, other state or federal regulatory requirements, or any other applicable law.
[Added 4-18-2005 by Ord. No. 2013-2005]
A. 
Land. The land to which these zoning changes shall apply is approximately 1.6 acres in size, located in between River Road, Maple Avenue, and Lake Street, situated in the I-2 Industrial District, and is the westerly part of the land designated as Block 5834, Lot 1 on the official tax map of the Borough. The Hadco Site shall be designated as the I-2-OR, Industrial Overlay Residential District on the Zoning Map of the Borough of Fair Lawn.
B. 
Zoning. In addition to the I-2 Industrial zoning on the Hadco Site, the land may also be developed, consistent with the requirements of the R-5-3 Inclusionary Townhouse Residential Zone, as set forth in § 125-15.1 of the Code of the Borough of Fair Lawn 2000 and applicable to remaining easterly part of Block 5834, Lot 1.
C. 
Nothing in this section shall restrict or limit the powers of the Planning Board of Fair Lawn in the discharge of its statutory responsibilities, including its review of and granting or denial of a development application for the site, under the Municipal Land Use Law, the ordinances and codes of the Borough of Fair Lawn, other state or federal regulatory requirements, or any other applicable law.
[Added 9-6-2005 by Ord. No. 2025-2005; amended 2-23-2010 by Ord. No. 2179-2010]
A. 
The land to which this district applies includes Block 3610, Lots 1 and 2; Block 3609, Lot 1, in the Borough of Fair Lawn. Projects in this zoning district shall be considered prior-round (1986-1999) inclusionary residential projects.
B. 
The purpose of the R-6 Inclusionary Multifamily Residential Zone is to implement the provisions of the Interlocutory Order of the Superior Court of New Jersey, granting a Builder's Remedy and Other Forms of Relief, entered by the Honorable Jonathan N. Harris, J.S.C. on July 29, 2009, by permitting the development of the Landmark Site (Block 3610, Lot 1; Block 3610, Lot 2; and Block 3609, Lot 1) substantially in compliance with Exhibit P15 ("The Landmark Plan," dated March 15, 2006) and Exhibit P4, including rendered building elevations, which were submitted to the Court as part of the document entitled "Planning Report: Builders [sic] Remedy Assessment and R-1-1 Zoning Analysis in the Matter of: Landmark at Radburn, LLC, et al v. Borough of Fair Lawn, et al. Docket Number BER-L-8226-07, dated October 30, 2008." The builder's remedy was ordered to allow a maximum of 200 total dwelling units, including a set-aside of affordable units equal to 20% of the total number of dwelling units constructed on the Landmark Site.
C. 
The residential set-aside shall be a whole number and shall be rounded up in all cases.
D. 
Units shall be created on site. The location and bedroom distribution of the affordable units shall be indicated on the architectural floor plans.
E. 
Inclusionary sites shall comply with Chapter 49 of the Borough Code, entitled "Affordable Housing." The affordable units shall be designed, constructed and sold/leased in a manner that makes them eligible for crediting pursuant to COAH’s rules governing including but not limited to low- and moderate-income split, bedroom distribution, phasing, deed restrictions and marketing. They shall be integrated into the overall project with the market-rate units to the extent feasible. The income distribution pursuant to COAH’s rules and the New Jersey Fair Housing Act[1] shall be at least 50% low-income units and no more than 50% moderate-income units.
[Amended 9-7-2010 by Ord. No. 2193-2010]
[1]
Editor’s Note: See N.J.S.A. 52:27D-301 et seq.
F. 
Supplemental definitions. As used in this section, the following terms shall have the meanings indicated:
HABITABLE ATTIC
A finished or unfinished area not considered a story which occupies at least 70 square feet in area which area shall have an average ceiling height of at least seven feet and is enclosed by knee walls on the sides (if applicable), the roof assembly above and the floor-ceiling assembly below.
MEZZANINE
An intermediate level of a building story that is located between the uppermost story's floor and the roof or uppermost ceiling, which has an aggregate floor area of not more than one-third of the area of the story in which it is located.
G. 
Zoning criteria:
(1) 
Permitted principal uses:
(a) 
Townhouses, as defined in § 125-8 ("Dwelling, townhouse/attached single-family").
(b) 
Multifamily units, as defined in § 125-8 ("Dwelling, Multifamily"), including units that are separated vertically and/or horizontally.
(c) 
Garden apartment units, as defined in § 125-8 ("Dwelling, garden apartment").
(d) 
Any building may combine multiple residential unit types.
(2) 
Permitted accessory uses and structures: uses which are customarily incidental to the principal use, excluding detached garages and sheds.
(3) 
Zoning standards: The zoning ordinance intends for the site to be developed as one cohesive project.
(a) 
Minimum tract area: 10 acres.
(b) 
Maximum number of residential units: 200.
(c) 
Maximum number of building stories and height:
[1] 
Four residential stories plus mezzanine/57 feet. Buildings that contain ceiling heights of less than nine feet and have a roof pitch of less than 8:12 shall be a maximum of 52.5 feet.
[2] 
When a building is within 200 feet of an existing adjacent single-family dwelling: three residential stories plus habitable attic or mezzanine/40 feet shall be the maximum building height.
[3] 
The height of a building containing more than one horizontal segment or leg and more than three residential stories shall be measured individually for each segment. An average shall be taken of the vertical distance from a point in the center of the street opposite of the building wall fronting said street to the mean height of a gable or hip roof at each end of the segment. Where a rear or side building facade also faces a street, the segment ends shall be comprised of the two points that are closest to the street, and at least 100 feet apart. Each segment, as measured above, shall comply with the building height requirement.
(d) 
Minimum building setback from Plaza Road and Cooper's Way:
[1] 
Buildings taller than 40 feet shall be set back at least 35 feet from the Cooper's Way property line and a minimum of 40 feet and an average of 45 feet from the cartway of Plaza Road;
[2] 
Buildings 40 feet or less in height may be set back no less than 30 feet from the cartway of Plaza Road and 35 feet from the Cooper's Way property line.
(e) 
Minimum building setback from internal roadways: Buildings taller than 40 feet shall be set back at least 20 feet from the face of curb; buildings 40 feet or less in height may be set back no less than 10 feet. Porte-cocheres on internal roadways may be located at the edge of pavement.
(f) 
In order to encourage variety in building facades, an eight-foot encroachment shall be permitted by first-floor unenclosed rear and front porches, stoops, stairs and balconies into all required yard areas, and bay windows and cornices shall be permitted to encroach five feet, where the encroachment comprises less than 50% of the facade.
(g) 
Minimum building setback from adjacent single-family residential lot lines: 30 feet.
(h) 
Minimum building setback from all other property lines: 20 feet.
(i) 
Maximum building coverage: 35% (calculated on Block 3610, Lots 1 and 2) (including a maximum total deck coverage of 5%).
(j) 
Maximum impervious coverage: 70% (calculated on Block 3610, Lots 1 and 2).
(k) 
Block 3609, Lot 1 may contain a maximum 15% total impervious coverage including 5% accessory building coverage.
(l) 
Minimum separation between buildings: 30 feet.
(m) 
Maximum number of residential units per building: 124 units may be located in one building; all other buildings shall contain 30 or fewer units.
(n) 
Maximum accessory building or structure height: 16 feet/one story, except that one-open air pavilion may be provided with a maximum height of 35 feet to the ridge.
(o) 
Accessory building setbacks: Accessory buildings shall comply with the tract perimeter setback requirements for principal buildings.
(p) 
Block 3609, Lot 1 (Archery Plaza), may contain an accessory structure without containing a principal structure.
(q) 
Front-loaded garages shall not extend more than seven feet from the building face. Minimum front yard setback for units with front-loaded garages shall be 20 feet from the street edge of pavement.
[Amended 9-7-2010 by Ord. No. 2193-2010]
(r) 
Substantial evergreen trees including Colorado spruce, Norway spruce, Douglas fir, Leyland cypress or comparable species shall be planted along all property lines that directly abut single-family residential uses to screen proposed buildings and parking, and shall also be utilized to screen any solid building walls greater than 40 feet in height from residences across the railroad tracks and from Route 208. A maximum 20% of the evergreen tree stock may be Eastern White Pine. Trees shall be installed eight to 10 feet in height, 10 feet on center. Where space provides, deciduous trees with canopies shall be provided between the evergreen tree buffer and buildings or parking areas, 50 feet on center, to create additional screening from upper stories. A fence along this property line may also be required by the Board.
(s) 
Off-street parking areas and driveways shall be set back at least 10 feet from all property lines that abut a side property line of a single-family residential use, and shall be set back at least 20 feet from all property lines that abut a rear property line of a single-family residence. Head-in parking shall not face adjacent single-family residential uses.
(t) 
Signs.
[1] 
One project identification sign shall be permitted as well as one sign identifying the Radburn community, the combined total of which shall not exceed 45 square feet.
[2] 
The Radburn community sign shall be located at the intersection of Plaza Road and Cooper's Way. The Radburn community sign shall be mounted on a brick or stone wall not exceeding six feet in height and may be externally illuminated. The base of the sign should be suitably landscaped.
[3] 
The project identification sign may be located at one of the site's entrance points. The sign may be externally illuminated and should be mounted on a brick or stone wall or monument, which shall not exceed seven feet in height. The sign shall be set back at least 20 feet from the Plaza Road cartway, shall not be located in a required sight triangle. The base of the sign should be suitably landscaped.
[4] 
Sign area.
[a] 
Area to be included. The supporting structure or bracing of a sign shall be omitted in measuring the area of the sign unless such structure or bracing is made part of the message or sign face. Where a sign has two faces back-to-back and parallel to each other, the area of only one face shall be included in determining the area of the sign.
[b] 
The area of all signs with backing shall be measured by computing the surface area of the sign backing.
[c] 
The area of all signs without backing shall be measured by computing the area of the smallest geometric figure or figures which can encompass all words, letters, figures, emblems and other elements of the sign message.
H. 
The New Jersey Residential Site Improvement Standards shall govern and shall supersede applicable sections of Chapter 125. Deviations from the Residential Site Improvement Standards are to be done in accordance with N.J.A.C. 5:21-3.
I. 
The loading space requirements set forth in § 125-48B shall not be applicable.
J. 
The location of and/or the need for relocation of any existing utility or other easements shall not be a valid impediment to approval by the Board, provided that the legitimate public interests pertaining thereto are provided for in any such relocation. Further, the Board shall cooperate with the governing body or other empowered entity to facilitate the relocation, at the applicant's expense, of any such easements and/or the improvements located in such easements.
K. 
In its review of requested variances or waivers, the Board shall consider the requirements of the New Jersey Council on Affordable Housing's rules at N.J.A.C. 5:97-10.3 and other applicable sections pertaining to development application procedures.
L. 
No studies related to fiscal or economic effects of the project shall be required.
M. 
Any subdivision of land in order to create smaller parcels for conveyance, including, but not limited to, fee simple townhouses, residential or other lots, shall provide access to such lots from either a public way or a private way subject to a homeowners' association, and shall have a minimum lot width of 16 feet and a minimum depth of 50 feet.
N. 
Supplemental design standards. Where provisions herein conflict with other provisions of Chapter 125, Land Development, this section shall supersede. Deviations from these standards may be granted via design waiver. Ordinance No. 2177-2010, "General Design Standards for Commercial, Mixed-Use and Multifamily Residential Development," and Ordinance No. 2178-2010, "Supplemental Standards for Planned Development," shall not apply.
[Amended 9-7-2010 by Ord. No. 2193-2010]
(1) 
Off-street parking may be located at grade, below grade and underneath buildings. Parking beneath buildings shall be enclosed and finished in appearance and shall contain fenestration where appropriate to avoid large expanses of blank facade. Below-grade parking and parking under buildings shall not result in a building that appears from any street to be set on piers. Off-street surface parking shall not be permitted between the building and Plaza Road, shall not be visible from Plaza Road and shall be screened with a year-round vegetative screen along Cooper's Way as well as along abutting single-family residential property lines.
(2) 
In no case shall any finished floor elevation exceed 72 inches from the street center-line grade. Where finished floor elevation exceeds 48 inches from the street center-line grade, the building facade shall be treated with fenestration or other decorative treatment and landscaping where appropriate for the purpose of minimizing large expanses of blank wall. Exposed walls on building segments with finished floor elevations of less than 48 inches shall be effectively screened with foundation plantings.
(3) 
A ten-foot-wide green space shall be provided between buildings and parking lots to provide for vehicle overhang and landscaping. Additional width shall be provided in areas where pedestrian access is provided.
(4) 
The site plans shall demonstrate the provision of adequate areas for the storage and collection of trash and recyclables. If trash and recyclables are to be stored inside units, adequate space shall be indicated on the floor plans. If common trash areas are to be provided, a detail of the area shall be provided on the plans. Trash enclosures shall be properly sized for the number of units served and shall be surrounded on three sides by a masonry enclosure at least six feet high, finished to match the principal buildings.
(5) 
No more than two curb cuts consisting of an ingress/egress shall be allowed on Plaza Road. Individual driveways shall not be permitted onto Plaza Road.
(6) 
Internal roadways shall be maintained as private roads unless accepted by the Borough in accordance with N.J.S.A. 40:67-23.7.
(7) 
Off-tract improvements for the project's impacts shall be governed by applicable law.
(8) 
Areas on site that do not contain buildings, parking areas, roadways or driveways should be designed as open space areas for the enjoyment of the private community and should be contiguous where possible to increase usability. Open space including but not limited to active play areas, walking paths and similar amenities shall be provided totaling no less than 15,000 square feet in area. Such amenities may be located on Block 3610, Lots 1 and 2, and Block 3609, Lot 1.
(9) 
Due to the significant number of dwelling units permitted, a children's play area for the private community shall be provided at the rate of 2,000 square feet or 10 square feet per residential unit, whichever is more. The play area shall contain no fewer than four pieces of equipment; an alternate layout may be approved by the Board. The play area shall comply with the New Jersey Barrier Free Subcode and the New Jersey Public Playground Safety Subcode. Additional parking spaces shall not be required for the children's play area. Such amenities as are provided pursuant to this provision shall not be counted as impervious coverage.
(10) 
At least 50% of all parking areas shall be shaded at tree maturity. Shade tree species shall be utilized. The perimeter of the parking area shall be fully landscaped and screened from residences.
(11) 
All areas not covered by buildings, streets, parking areas or sidewalks shall be landscaped with material that is suitable for the location and function of land.
(12) 
Existing mature street trees shall be identified on the site plans.
(13) 
The existing mature street trees along Plaza Road should be preserved, in which case the current sidewalk location may be maintained. If it is not feasible to preserve the trees, then a five-foot-wide planting strip shall be located between the curb and a four-foot-wide sidewalk, wherein street trees shall be planted 40 feet on center.
(14) 
Sidewalk no less than four feet wide shall be provided along Cooper's Way, the interior tract roadways and throughout the tract. Along the Cooper's Way frontage, a two-foot-wide grass strip shall be provided between the curb and the sidewalk. The existing mature street trees shall be preserved.
(15) 
Any proposed rear decks or patios shall be indicated on the site or subdivision plans as well the architectural floor plans.
(16) 
In order to increase the effectiveness and usability of proposed open space and recreation areas, such areas shall be contiguous where feasible.
(17) 
A clear pedestrian connection shall be provided from the residential units to the Radburn train station across Block 3609, Lot 1.
(18) 
Architectural floor plans and building elevations, prepared by a licensed architect under seal, shall be submitted with the site plans. The floor plans shall indicate the number of bedrooms per dwelling unit.
(19) 
Although a common design theme is not to be discouraged, buildings should be differentiated to avoid monotony and to minimize the appearance of building mass.
(20) 
The facades of buildings facing Plaza Road and Cooper's Way shall be designed to appear as front facades, and building entrances shall be provided on Plaza Road. The rear of buildings and garages shall not face Plaza Road.
(21) 
Buildings shall be designed to have an attractive, finished appearance from all public spaces, streets and adjacent residential uses. The architectural treatment of a facade or roof shall be completely continued around all visibly exposed sides of a building. Building facades abutting or facing the railroad right-of-way may be solid walls without fenestration; the color and finish material of the wall shall complement the colors and materials used on the building facades that do not abut the railroad right-of-way, but shall not be required to be the same as the facades that do not abut the railroad right-of-way.
(22) 
The colors of all buildings, pavements, awnings, signage, site amenities and other structures should be warm, muted tones. Building and trim accent areas may feature brighter colors.
(23) 
Building facades, porch and entry posts, windows and window panes should respect traditional architectural proportions such as the Golden Rectangle.
(24) 
Porches shall provide porch beams above piers or posts.
(25) 
Building facades should be articulated vertically as well as horizontally where appropriate to reduce the scale and uniformity of large-scale buildings. Street side building facades should be designed to reflect the Radburn community's identity, character and scale. The buildings should feature pitched roofs with dormers, as well as changes in roof plane. Facade and roof designs shall be similar in concept but not required to be the same as Exhibits P15 ("The Landmark Plan," dated March 15, 2006) and Figures 20, 22 and 24 in Exhibit P4 which were submitted to the Court as part of the document entitled "Planning Report: Builders [sic] Remedy Assessment and R-1-1 Zoning Analysis in the Matter of: Landmark at Radburn, LLC, et al v. Borough of Fair Lawn, et al. Docket Number BER-L-8226-07, dated October 30, 2008."
(26) 
Materials on facades fronting on Plaza Road and to a depth of at least 100 feet off of Plaza Road and Cooper's Way shall be high quality and may include but not be limited to brick, natural stone, stucco, EIFS, fiber cement or wood composite. Trim materials may include but not be limited to wood, wood composite, natural stone, brick, cellular PVC or fiberglass.
(27) 
Building fronts shall be arranged so that front facades generally face front facades.
(28) 
Roofs.
(a) 
Box-like shapes should be avoided.
(b) 
Architectural embellishments that add visual interest to roofs, including but not limited to dormers, belvederes, masonry chimneys, cupolas and such similar elements should be utilized, provided that such are architecturally compatible with the style, materials, colors and details of the building and they comply with the building height standards.
(c) 
The minimum permitted roof pitch shall be 6:12; a 4:12 roof pitch may be permitted for shed dormers.
(29) 
Where building entrances are planned along Plaza Road, they shall be separated from the sidewalk by a low hedge and/or tubular aluminum picket-style or similar fence to create separation and privacy (see Detail #1 Plaza Road Streetscape).
Detail #1 Plaza Road Streetscape
049 Detail 1.tif
(30) 
Mechanisms to control outdoor clutter and to handle storage of bicycles, grills and other outdoor equipment shall be provided.
(31) 
Ganged mailboxes shall be located where safe pedestrian and vehicular access can be provided.
(32) 
All exterior yard areas shall be maintained by a homeowners' association, management company, or similar common entity, not individual property owners.
[Amended 9-7-2010 by Ord. No. 2193-2010]
(33) 
In addition to the other landscaping standards herein and elsewhere in the Borough Code, on-site landscaping should be provided as follows:
(a) 
Noninvasive, drought-tolerant species should be utilized.
(b) 
Single-stemmed tree species are recommended.
(34) 
A stormwater basin may be located in the southwestern corner of the site, and shall not be permitted between the building and Plaza Road.
(35) 
Site lighting shall facilitate access to buildings from the street, sidewalk or parking areas without creating nuisance glare, sky light or consuming too much electricity. Full cut-off fixtures and house-side shields should be utilized. Light poles and fixtures should enhance site aesthetics, and light pole footings shall be installed flush with grade.
(36) 
Retaining walls should not exceed six feet in height. Where total wall height is required to be greater than six feet, terracing shall be used between walls at a width equal to the height of the tallest wall. The terraced area shall be landscaped with low-maintenance plant material that will grow to at least the height of the wall. The wall shall be faced with durable material that coordinates with the principal building facade materials.
O. 
Any site plan shall provide mapping of areas that are undergoing soil remediation, areas that are to be capped and the location of any building to contain remediation equipment.
P. 
The application and plan set shall be sent to the Borough Health Officer and Borough Environmental Commission for review and comment on applicable items.
Q. 
Soil and groundwater contamination shall be remediated to allow for the proposed use in accordance with NJDEP requirements.
R. 
[2]Informal plan review recommended.
(1) 
It is strongly recommended that the applicant appear before the Board for informal review of a refined concept plan for the project prior to the submission of any site plan application.
(2) 
The refined concept plan should indicate the location of required roadways, parking areas, pedestrian paths, open space and recreation areas, buildings, driveways and other site improvements. The number of proposed units, unit types and orientation of buildings should also be provided, as well as architectural sketches of proposed buildings.
[2]
Editor’s Note: Former Subsection R, which stated that Board approval would be subject to all outside agency approvals, including New Jersey State Historic Preservation Office review and recommendation, was repealed 9-7-2010 by Ord. No. 2193-2010. This ordinance also provided for the redesignation of former Subsections S and T as Subsections R and S, respectively.
S. 
Nothing in this section shall restrict or limit the powers of the Planning Board of Fair Lawn and discharge of its statutory responsibilities, including its review of and granting or denial of a development application for the site, under the Municipal Land Use Law,[3] the ordinances and codes of the Borough of Fair Lawn, other state or federal regulatory requirements, or any other applicable law.
[3]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[Added 6-16-2015 by Ord. No. 2354-2015; and 8-16-2016 by Ord. No. 2400-2016]
This section incorporates the redevelopment plan for the property[1] (which is on file in the Municipal Clerk's office) into the Code by reference.
[1]
Editor's Note: The "property" refers to Block 5834, Lot 1.02, known as the rear portion of the KEM property.
[Added 2-10-2009 by Ord. No. 2137-2009]
A. 
Land. The land to which this increase in density and the addition of affordable housing zoning changes shall apply includes Block 5723, Lots 1, 3 and 5 in the Borough of Fair Lawn.
[Amended 2-16-2010 by Ord. No. 2174-2010[1]]
[1]
Editor's Note: This ordinance also rezoned Block 5723, Lot 7, previously part of the B-4 with Affordable Housing Component Overlay District, to the B-4 District.
B. 
Zoning. In addition to the B-4 River Road Business District zoning, there shall be an affordable housing set-aside for each residential development developed at a density of eight units or more per gross acre. Each such development shall include a set-aside of 25% of total units for affordable housing if sales housing is produced or a set-aside of 20% if rental housing is produced.
C. 
Incentives. Incentives to create the affordable housing include the following:
(1) 
A set-aside of 13% of very-low-income units shall not be required. A split of 50% low-income and 50% moderate-income shall be required.
(2) 
No affordable units shall be required if the required set-aside is less than one whole unit.
(3) 
The residential set-aside shall be rounded down if it is 0.4 (4/10) or less.
(4) 
Applicants may receive a bonus for nonresidential square footage that is demolished, if it was occupied within one year of the date it is to be demolished, if the structure is not considered historically significant, i.e., eligible for inclusion in the State Register of Historic Places. The applicant may reduce the required set-aside of residential units by the number of jobs lost from the demolished building per an application of COAH's nonresidential multipliers located in Appendix D, divided by 16. For example, if an office that is 6,000 square feet is to be demolished, 1.05 units may be subtracted from the required residential set-aside:
6,000 /1,000 = 6
6 x 2.8 = 16.8
16.8 / 16 = 1.05
(5) 
Permitted building height shall be increased from 33 feet to 35 feet, however, it shall remain at three stories in height.
(6) 
Maximum building coverage shall be increased to 10% more than what is permitted by ordinance. There is no floor-area ratio requirement.
(7) 
Affordable units may be constructed off site, within the Borough, if the alternative location and arrangement is deemed feasible by the Board.
(8) 
Residential parking standards shall be consistent with the residential site improvements standards for "garden apartment."
(9) 
Up to 25% of on-site parking provided may be located in a side yard.
(10) 
Underground parking may be provided.
D. 
The affordable units shall be designed, constructed and sold/leased in a manner that makes them eligible for crediting pursuant to COAH's rules governing, including but not limited to low- and moderate-income split, bedroom distribution, phasing, deed restrictions and marketing.
E. 
Nothing in this section shall restrict or limit the powers of the Planning Board of Fair Lawn and discharge of its statutory responsibilities, including its review of and granting or denial of a development application for the site, under the Municipal Land Use Law,[2] the ordinances and Code of the Borough of Fair Lawn, other state or federal regulatory requirements or any other applicable law.
[2]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[Added 2-16-2010 by Ord. No. 2173-2010]
A. 
Land. The land to which this district applies includes Block 5729, Lot 2, also known as the Clariant property in the Borough of Fair Lawn.
B. 
Zoning. There shall be an affordable housing set-aside for each residential development developed at a density of eight units or more per gross acre. Each such development shall include a twenty-five-percent set-aside of total units for affordable housing.
C. 
A twenty-percent very-low-, a thirty-percent low-, and a fifty-percent moderate-income split shall be required. A cash subsidy may be available from the Borough's Affordable Housing Trust Fund to assist in the creation of two very-low-income units.
D. 
No affordable units shall be required if the project's growth share per COAH's rules is less than one whole unit.
E. 
The residential set-aside shall be a whole number and shall be rounded up in all cases except when the obligation is less than one whole unit.
F. 
Units shall be created on site.
G. 
Inclusionary sites shall comply with Chapter 49 of the Borough Code, entitled "Affordable Housing." The affordable units shall be designed, constructed and sold/leased in a manner that makes them eligible for crediting pursuant to COAH's rules governing including but not limited to low- and moderate-income split, bedroom distribution, phasing, deed restrictions and marketing. They shall be integrated into the overall project with the market-rate units to the extent feasible.
H. 
The market-rate units may be age restricted. The affordable units may be age restricted, however, the number of units age restricted shall not exceed the Borough's senior cap per COAH's rules. Units planned or created as part of a municipally sponsored senior housing project shall take precedence when calculating units toward the senior cap.
I. 
Incentives. Incentives to create the affordable housing include the following:
(1) 
Residential units shall be permitted at a maximum density of 10 units per acre whereas residential uses are not currently permitted.
(2) 
Underground parking may be provided if structurally feasible, and parking beneath structures shall be permitted, also if structurally feasible. Below-grade parking shall be finished in appearance from all exterior viewsheds and shall not result in a building that appears from any street to be set on piers. Above-grade parking shall be permitted only if it is located wholly behind a building and/or is not visible from any public street. In no case shall any parking layout result in a residential finished floor elevation of more than 48 inches above grade.
J. 
Zoning criteria.
(1) 
Permitted uses:
(a) 
Townhouses, as defined in § 125-8 ("Dwelling, townhouse/attached single-family").
(b) 
Multifamily units, as defined in § 125-8 ("Dwelling, multifamily").
(2) 
Accessory uses: Accessory uses which are customarily incidental to the principal use.
(3) 
Prohibited uses: Those uses enumerated in § 125-17B shall be prohibited.
(4) 
Bulk standards: The zoning ordinance intends for the site to be developed as one cohesive project.
(a) 
Minimum lot area: 12 acres.
(b) 
Maximum building height: three stories.
(c) 
Minimum setback from property lines: 50 feet.
(d) 
Minimum setback from interior roadways: 25 feet.
(e) 
Maximum building coverage: 25%.
(f) 
Maximum total lot coverage: 60%.
(g) 
Minimum total open space set-aside: 20%.
(h) 
Maximum deck coverage: 5%.
(i) 
In order to encourage variety in building facades, a five-foot encroachment shall be permitted by roof overhangs, unenclosed porches, stoops, stairs and balconies into all required yard areas where the encroachment comprises less than 50% of the facade.
(j) 
Minimum separation between buildings: 30 feet.
(k) 
Maximum number of residential units per building: 75.
(l) 
Maximum accessory building or structure height: 16 feet/one story.
(m) 
Accessory building setbacks: Accessory buildings shall comply with the setback requirements for principal buildings.
(n) 
Front-loaded garages shall not extend more than seven feet from the building face.
(o) 
Substantial evergreen trees including Colorado spruce, Norway spruce, Douglas fir and Leyland cypress shall be planted along all property lines that abut single-family residential zones. Trees shall be installed eight feet to 10 feet in height, 10 feet on center. Where space provides, deciduous trees with canopies shall be provided between the evergreen tree buffer and buildings or parking areas, 50 feet on center, to create additional screening from upper stories. A fence along this property line may also be required by the Board, and both sides of the fence may require landscaping.
(p) 
Off-street parking lots shall be located behind buildings and shall be set back at least 25 feet from all property lines. Head-in parking shall not face adjacent single-family residential uses.
(q) 
One project identification sign shall be permitted on the Fair Lawn Avenue frontage. The sign shall be located on a brick or stone wall, may be externally illuminated and shall not exceed 45 square feet in area.
K. 
A public riverfront walkway and linear conservation area containing the walkway shall be provided along the Passaic River the full length of the property. The walkway shall comply with the applicable rules of the New Jersey Department of Environmental Protection. The walkway may be conveyed to the Borough of Fair Lawn or other conservation entity for the purposes of ownership and/or maintenance. The dedication of the conservation area shall not diminish the overall size of the tract in terms of residential unit yield. The walkway and any required parking for the public access to the waterfront shall not be counted in the tract's overall impervious coverage limitation.
L. 
The New Jersey Residential Site Improvement Standards shall govern. Deviations from those standards are to be done in accordance with N.J.A.C. 5:21-3. Parking spaces shall not be required for on-site recreational facilities, and a portion of required parking may be provided on internal site roadways in areas where adequate dimensions have been provided.
M. 
Necessary off-tract improvements shall be made per § 125-77.
N. 
In its review of requested variances or waivers, the Board shall consider the requirements of the New Jersey Council on Affordable Housing's rules at N.J.A.C. 5:97-10.3 pertaining to development application procedures.
O. 
No studies related to fiscal or economic affects of the project shall be required.
P. 
Any subdivision of land in order to create smaller parcels for conveyance, including, but not limited to, fee simple townhouses, residential or other lots, shall provide access to such lots from either a public way or a private way subject to a homeowners' association, and shall have a minimum lot width of 16 feet and a minimum depth of 50 feet.
Q. 
Supplemental design standards. These standards shall be in addition to the standards contained in Chapter 125, Article V, Site Plan and Subdivision Standards, where applicable. Where provisions herein conflict with other applicable provisions of Chapter 125, Land Development, this section shall supersede. Deviations from these standards may be granted via design waiver.
(1) 
No more than one curb cut consisting of an ingress/egress shall be allowed on Fair Lawn Avenue and one shall be allowed on Third Street. Individual driveways shall not be permitted onto those streets.
(2) 
Due to the significant number of dwelling units permitted, a children's play area for the private community shall be provided at the rate of 2,000 square feet or 10 square feet per residential unit, whichever is more, if the project is not age restricted. The play area shall contain no fewer than four pieces of equipment; an alternate layout may be approved by the Board. The play area shall comply with the New Jersey Barrier Free Subcode and the New Jersey Public Playground Safety Subcode.
(3) 
Existing mature street trees and trees along the Passaic River shall be identified on the site plans and preserved to the extent feasible.
(4) 
Off-street parking areas shall not be visible from Fair Lawn Avenue or Third Street.
(5) 
The facades of buildings facing Fair Lawn Avenue and Third Street shall be designed to appear as front facades. The rear of buildings and garages shall not face Fair Lawn Avenue.
(6) 
Facade materials on facades facing Fair Lawn Avenue and Third Street to a depth of at least 100 feet shall be high quality and may consist of brick, natural stone, stucco, EFIS or wood composite. Trim materials may consist of wood, wood composite, natural stone, brick or fiberglass-wrapped columns.
(7) 
All pedestrian entryways shall be prominent, well-lit and shall be elevated a minimum of 18 inches and a maximum of 48 inches above adjacent sidewalks. Entryways shall be covered.
(8) 
Where building entrances are planned along Fair Lawn Avenue or Third Street, they shall be separated from the sidewalk by a low hedge or tubular aluminum picket-style or similar fence to create separation and privacy.
R. 
Any site plan shall provide mapping of areas that are undergoing soil remediation, areas that are to be capped and the location of any building to contain remediation equipment. Soil and groundwater contamination shall be remediated to allow for the proposed use in accordance with NJDEP requirements.
S. 
The application and plan set shall be sent to the Borough Health Officer and Borough Environmental Commission for review and comment on applicable items.
T. 
Nothing in this section shall restrict or limit the powers of the Planning Board of Fair Lawn and discharge of its statutory responsibilities, including its review of and granting or denial of a development application for the site, under the Municipal Land Use Law,[1] the ordinances and codes of the Borough of Fair Lawn, other state or federal regulatory requirements, or any other applicable law.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[Added 2-16-2010 by Ord. No. 2172-2010]
A. 
Land. The land to which this district applies includes Block 4801, Lot 1, in the Borough of Fair Lawn.
B. 
Zoning. There shall be an affordable housing set-aside for each residential development developed at a density of eight units or more per gross acre. Each such development shall include a twenty-five-percent set-aside of total units for affordable housing unless bonus options offered herein are exercised, which require higher set-asides.
C. 
A thirteen-percent very-low-, a thirty-seven-percent low-, and a fifty-percent moderate-income split shall be required.
D. 
No affordable units shall be required if the project's growth share per COAH's rules is less than one whole unit.
E. 
The residential set-aside shall be a whole number and shall be rounded up in all cases except when the obligation is less than one whole unit.
F. 
Affordable units may be constructed on site or a payment in lieu made to the Borough's Affordable Housing Trust Fund in accordance with § 49-2C(3).
[Amended 1-29-2013 by Ord. No. 2262-2013]
G. 
Inclusionary sites shall comply with Chapter 49 of the Borough Code, entitled "Affordable Housing." The affordable units shall be designed, constructed and sold/leased in a manner that makes them eligible for crediting pursuant to COAH's rules governing including but not limited to low- and moderate-income split, bedroom distribution, phasing, deed restrictions and marketing. They shall be integrated into the overall project with the market-rate units to the extent feasible.
H. 
Incentives. Incentives to create the affordable housing include the following:
(1) 
Residential uses shall be permitted whereas they are not currently permitted.
(2) 
Retail uses shall be permitted whereas they are currently not permitted.
(3) 
Mixed-use development shall be permitted whereas it is currently not permitted.
(4) 
Opportunities for increased building height have been provided.
(5) 
Underground parking may be provided if structurally feasible, and parking beneath structures shall be permitted, also if structurally feasible.
(6) 
Shared parking between compatible uses may be permitted if found practicable by the Board.
(7) 
Residential uses may utilize the Residential Site Improvement Standards to determine the residential parking requirement with regard to number of parking spaces.
I. 
Nonresidential developers' fees shall be required on the permitted base floor area ratio (up to 0.18).
J. 
Zoning criteria:
(1) 
An inclusionary residential component shall be required, except where a payment in lieu of constructing units on site is proposed and approved by the Board. Payments in lieu shall comply with the requirements at § 49-2C(3).
[Amended 1-29-2013 by Ord. No. 2262-2013]
(2) 
Permitted principal uses include a mix of uses comprised of the following:
(a) 
Townhouses, as defined in § 125-8 ("Dwelling, townhouse/attached single-family").
(b) 
Multifamily units, as defined in § 125-8 ("Dwelling, multifamily").
(c) 
Retail trade including: retail establishments; personal services; showroom sales intended for display of merchandise, excluding motorized vehicle sales and services.
(d) 
Services/recreation/entertainment uses including: health and fitness centers and spas; day-care facilities, including child-care and adult-care; bakeries; delicatessens; restaurants, excluding all restaurants with drive-throughs; catering facilities; theaters for the performing arts; professional studios for dance, music, art and photography; art galleries and libraries; commercial schools; animal hospitals.
(e) 
Office and related business services including: executive, professional and administrative activities; financial institutions; computer and data processing and storage centers; business service and service establishments.
(f) 
Health services including: nursing homes; physical and mental health rehabilitation centers; and medical office.
(g) 
Public uses including: public parks and recreation facilities and government buildings and uses.
(3) 
Permitted conditional uses.
(a) 
Hotel/conference center. Hotel/conference center shall be permitted provided the facility has a minimum 100 rooms, minimum 3,000 square foot of conference space, and a minimum height of four stories (maximum eight stories), which may include residential or nonresidential space related or unrelated to the hotel. Each story above four shall be allowed 10.5 feet in additional building height. Buildings more than four stories in height shall provide a seventy-five-foot side yard setback, a seventy-five-foot setback from Pollitt Drive and a two-hundred-foot setback from Route 208.
(b) 
(Reserved)
(4) 
Accessory uses: Accessory uses which are customarily incidental to the principal use, including outdoor dining, shall be permitted.
(5) 
Bulk standards: The zoning ordinance intends for the site to be developed as one cohesive project.
(a) 
Minimum lot area: nine acres.
(b) 
Minimum lot width: 400 feet.
(c) 
Minimum lot depth: 300 feet.
(d) 
Maximum building height: three stories except as otherwise permitted herein.
(e) 
Maximum building coverage: 30% if surface parking is provided; 40% if structured parking is provided.
(f) 
Maximum total impervious coverage: 75%.
(g) 
Fourth building stories. Fourth stories shall be considered bonus stories and shall be permitted for all permitted uses provided that the building adheres to required building setbacks and that open space or public gathering area is provided on site at a rate of 0.5 square feet for every one square foot of bonus fourth-story gross floor area created.
(h) 
Not more than 50% of the total amount of floor area proposed for the first and second floors of all buildings on the entire site shall be used for residential dwelling purposes. At least one residential unit shall be provided for every 1,000 square feet of nonresidential space created up to the residential caps stipulated herein.
(i) 
No more than 45% of total nonresidential floor area shall be "retail trade" in use, as defined in the Land Development Ordinance.[1] Food store and/or hotel/conference center use shall not be counted towards the forty-five-percent limit.
[1]
Editor's Note: See Ch. 125, Land Development.
(j) 
At least 50% of floor area within 100 feet of Route 208 shall be office in use.
(k) 
Building height and setbacks shall comply with the following schedule:
Building Height & Setback Schedule
Building Height
Required Setbacks
Side Yard
From Pollitt Drive
From Route 208
1 story / 25 feet
25 feet
35 feet
65 feet
2 stories / 35 feet
25 feet
35 feet
65 feet
3 stories / 40 feet*
40 feet
50 feet
65 feet
4 stories / 55 feet**
60 feet
75 feet
200 feet
*Up to 35% of the linear frontage of Pollitt Drive or the linear length of a side property line may be occupied by a three-story building that has a setback of 35 feet to 50 feet.
** Up to 35% of the side yard or the linear frontage of Pollitt Drive may be occupied by a four-story building that has a setback between 50 feet and 75 feet.
(6) 
Residential density, floor area ratios and affordable housing set-asides shall comply with one of the following options:
Residential Density, Nonresidential FAR and Affordable Housing Set-Asides Schedule
Option #
Base Residential Density
(in units per acre)
Maximum Nonresidential Floor Area Ratio
Required Affordable Housing Set-Aside
Family Rental Requirement
A
8 du/acre or 80 total units, whichever is less
0.18
25%
None
B
15 du/acre, or 150 total units, whichever is less
0.18
25%
75% of affordable units
C
15 du/acre, or 150 total units, whichever is less
0.22
27%
50% of affordable units
D
15 du/acre, or 150 total units, whichever is less
0.23*
27%
50% of affordable units
*0.02 additional FAR shall be permitted for every additional one-percent increase in affordable housing set-aside.
(7) 
In order to encourage variety in building facades, a five-foot encroachment shall be permitted by roof overhangs, unenclosed porches, stoops, stairs and balconies into all required yard areas where the encroachment comprises less than 50% of the facade.
(8) 
Underground parking may be provided if structurally feasible, and parking beneath structures shall be permitted, also if structurally feasible. Below-grade parking shall be finished in appearance from all exterior viewsheds and shall not result in a building that appears from any street to be set on piers. Above-grade parking shall be permitted only if it is located wholly behind a building and/or is not visible from any public street. In no case shall any parking layout result in a residential finished floor elevation of more than 48 inches above grade.
(9) 
Signage shall comply with standards contained in the Chapter 125, Land Development, however, except that only one freestanding sign shall be allowed on the site's Route 208 frontage. The sign on Route 208 shall be monument style and no more than 100 square feet in area.
K. 
If the subject tract is 10 acres in area, it shall be considered a planned development per the Municipal Land Use Law.[2]
[2]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
L. 
Necessary off-tract improvements shall be made per § 125-77.
M. 
Any site plan shall provide mapping of areas that are undergoing soil remediation, areas that are to be capped and the location of any building to contain remediation equipment. The application and plan set shall be sent to the Borough Health Officer and Environmental Commission for review and comment on applicable items.
N. 
Soil and groundwater contamination shall be remediated to allow for the proposed use in accordance with NJDEP requirements.
O. 
Supplemental design standards. Deviations from these standards shall be granted via design waiver.
(1) 
The developer shall comply with applicable design standards contained in Chapter 125, Article V. Where this section conflicts with Chapter 125, Article V, this section shall supersede.
(2) 
Buildings shall be oriented toward the state highway. The primary entrance to the buildings does not have to face the state highway; however, the facades shall be designed to appear as front facades.
(3) 
Residential uses may utilize the Residential Site Improvement Standards to determine the residential parking requirement with regard to number of parking spaces.
(4) 
No more than one point of ingress/egress shall be allowed on Route 208.
(5) 
The applicant should seek approval from NJDOT for the installation of acceleration and deceleration lanes on Route 208.
(6) 
A roadway or access driveway connection from Route 208 to Pollitt Drive should be made. Pollitt Drive Extension may need to be slightly modified/squared off to facilitate this connection.
(7) 
Croucher Lane should be maintained as a private road, and connections should be limited to providing access primarily to residents of Fair Lawn Commons.
(8) 
If acceptable to the owner of Fair Lawn Commons, the stop signs along Croucher Lane should be reoriented to face the parking lots to facilitate circulation in this area.
(9) 
A sidewalk connection between Pollitt Drive and Chandler Drive across Block 4702, Lot 2 should be provided to the extent feasible. There is already an easement in this area that could potentially be utilized, otherwise a new easement could be established by the Borough. This sidewalk easement will facilitate pedestrian traffic from the area to Radburn train station.
(10) 
An area for a bus pull-out, including a bus shelter, should be provided on Pollitt Drive. Fair Lawn currently provides mini-bus service to municipal residents.
(11) 
An open space/gathering area should be provided for the residential component. The open space area should be at least 3% of total site area and may include outdoor dining areas. Open space may include hard-surfaced plaza or gathering areas. This standard shall be exclusive of the open space requirements related to bonus floors.
(12) 
Rooftop spaces are permitted to meet the open space and public gathering area requirement for bonus floors if improved for public access with appropriate surfacing such as gravel, decking or similar material.
(13) 
Existing mature trees greater than five inches diameter at breast height that are in good condition shall be identified on the site plan and preserved to the extent feasible.
P. 
The affordable units shall be designed, constructed and sold/leased in a manner that makes them eligible for crediting pursuant to COAH's rules governing including but not limited to low- and moderate-income split, bedroom distribution, phasing, deed restrictions and marketing. They shall be integrated into the overall project with the market-rate units to the extent feasible.
[Added 2-16-2010 by Ord. No. 2175-2010]
A. 
Purpose.
(1) 
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.
(2) 
Pursuant to P.L. 2008, c. 46 section 8 (N.J.S.A. 52:27D-329.2), and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7),[1] COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.
[1]
Editor's Note: Pursuant to the New Jersey Economic Stimulus Act of 2009, the Non-Residential Development Fee Act, which was signed into law on 7-17-2008, was suspended. For applicable development fees, consult the Borough offices.
(3) 
This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance P.L. 2008, c. 46, §§ 8 and 32 through 38. Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.
B. 
Basic requirements.
(1) 
This section shall not be effective until approved by COAH or the Court pursuant to N.J.A.C. 5:96-5.1.
(2) 
The Borough of Fair Lawn shall not spend development fees until COAH or the Court has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and 5:96-5.3.
C. 
Definitions. The following terms, as used in this section, shall have the following meanings:
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a one-hundred-percent affordable development.
COAH or THE COUNCIL
The New Jersey Council on Affordable Housing established under the Act which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the state.
DEVELOPER
The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.
EQUALIZED ASSESSED VALUE
The assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with §§ 1, 5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through c).
GREEN BUILDING STRATEGIES
Those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.
D. 
Residential development fees.
(1) 
Imposed fees.
(a) 
Within all zoning districts, residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1.5% of the equalized assessed value for residential development provided no increased density is permitted.
(b) 
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.
(c) 
Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1% of the equalized assessed value on the first two units; and the specified higher percentage up to 6% of the equalized assessed value for the two additional units, provided zoning on the site has not changed during the two-year period preceding the filing of such a variance application.
(2) 
Eligible exactions, ineligible exactions and exemptions for residential development.
(a) 
Affordable housing developments and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.
(b) 
Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.
(c) 
Development fees shall be imposed and collected when an existing structure is demolished and replaced, except in the case of destruction by fire or natural disaster.
(d) 
Developers of inclusionary developments shall be exempt from paying a development fee.
(3) 
Collection procedures for residential development.
(a) 
Residential developers shall pay 100% of the calculated development fee amount prior to the issuance of a final certificate of occupancy.
(b) 
The fee percentage shall be based on the percentage that applies on the date building permits are issued.
(4) 
Appeal of residential development fees. A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by the Borough of Fair Lawn. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 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.
E. 
Nonresidential development fees.
(1) 
Imposed fees
(a) 
Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% percent of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.
(b) 
Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.
(c) 
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e., land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
(2) 
Eligible exactions, ineligible exactions and exemptions for nonresidential development.
(a) 
The nonresidential portion of a mixed-use inclusionary or market-rate development shall be subject to the two-and-a-half-percent development fee, unless otherwise exempted below.
(b) 
The two-and-a-half-percent fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.
(c) 
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF State of New Jersey Nonresidential Development Certification/Exemption Form. Any exemption claimed by a developer shall be substantiated by that developer.
(d) 
A developer of a nonresidential development exempted from the nonresidential development fee pursuant to P.L. 2008, c. 46, shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.
(e) 
If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Borough of Fair Lawn as a lien against the real property of the owner.
(3) 
Collection procedures for nonresidential development.
(a) 
The developer of a nonresidential development shall obtain a Form N-RDF, State of New Jersey Nonresidential Development Certification/Exemption, and complete as per the instructions provided. The construction official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.
(b) 
The construction official responsible for the issuance of a building permit shall notify the local tax assessor of the issuance of the first building permit for a development which is subject to a nonresidential development fee.
(c) 
Within 90 days of receipt of that notice, the municipal tax assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the nonresidential development.
(d) 
The construction official responsible for the issuance of a final certificate of occupancy notifies the local assessor of any and all requests for the scheduling of a final inspection on property which is subject to a nonresidential development fee.
(e) 
Within 10 business days of a request for the scheduling of a final inspection, the municipal assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the nonresidential development; calculate the nonresidential development fee; and thereafter notify the developer of the amount of the fee.
(f) 
Should the Borough of Fair Lawn fail to determine or notify the developer of the amount of the nonresidential development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in subsection b of § 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
(g) 
The developer shall pay 100% of the calculated development fee amount prior to the municipal issuance of a final certificate of occupancy for the subject property.
(4) 
Appeal of nonresidential development fees. A developer may challenge nonresidential development fees imposed 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 Borough of Fair Lawn. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 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.
F. 
Affordable Housing Trust Fund.
(1) 
There is hereby created a separate, interest-bearing housing trust fund to be maintained by the Chief Financial Officer of the Borough for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
(2) 
The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:
(a) 
Payments in lieu of on-site construction of affordable units;
(b) 
Developer-contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;
(c) 
Rental income from municipally operated units;
(d) 
Repayments from affordable housing program loans;
(e) 
Recapture funds;
(f) 
Proceeds from the sale of affordable units; and
(g) 
Any other funds collected in connection with the Borough of Fair Lawn's affordable housing program.
(3) 
Within seven days from the opening of the trust fund account, the Borough of Fair Lawn shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the bank, and COAH, to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).
(4) 
All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.
G. 
Use of funds.
(1) 
The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the Borough of Fair Lawn's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to, preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 5:97-8.9 and specified in the approved spending plan.
(2) 
Funds shall not be expended to reimburse the Borough of Fair Lawn for past housing activities.
(3) 
At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.
(a) 
Affordability assistance programs may include down payment assistance, security deposit assistance, low-interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs.
(b) 
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner shall entitle the Borough of Fair Lawn to bonus credits pursuant to N.J.A.C. 5:97-3.7.
(c) 
Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
(4) 
The Borough of Fair Lawn 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, in accordance with N.J.A.C. 5:96-18.
(5) 
No more than 20% of all revenues collected from development fees may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the Affordable Housing Trust Fund.
H. 
Monitoring. The Borough of Fair Lawn shall complete and return to COAH all monitoring forms included in monitoring requirements related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier-free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with the Borough of Fair Lawn's housing program, as well as to the expenditure of revenues and implementation of the plan approved by the court. All monitoring reports shall be completed on forms designed by COAH.
I. 
Ongoing collection of fees. The ability for the Borough of Fair Lawn to impose, collect and expend development fees shall expire with its judgment of compliance unless the Borough of Fair Lawn has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance. If the Borough of Fair Lawn fails to renew its ability to impose and collect development fees prior to the expiration of judgment of compliance, it 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 § 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Borough of Fair Lawn shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall the Borough of Fair Lawn retroactively impose a development fee on such a development. The Borough of Fair Lawn shall not expend development fees after the expiration of its substantive certification or judgment of compliance.