[Added 3-28-1984 by Ord. No. 11-84; amended 9-12-1984 by Ord. No. 38-84; 5-11-1988 by Ord. No. 11-88]
It is the intent of the RH-5, RH-16 and RH-20 Zone regulations to provide a realistic opportunity for the construction of a variety of housing types and income levels in the Township, including housing for lower-income households, and to encourage the development of such lower-income housing and other housing by providing specific land use regulations addressing those needs. These regulations are designed to meet the mandate of Mt. Laurel II. Any provisions of this chapter or any other ordinance in conflict with the RH-5, RH-16 and RH-20 zoning regulations and which impose higher standards not related to health and safety shall be inapplicable.
Number of dwelling units.
The Planning Board may increase the number of total dwelling units in the RH-5 and RH-16 Zones by 10% if such increase is needed to achieve the purposes set forth in § 95-69 above, and further provided that the increase would not adversely affect health and safety and encroach on environmentally sensitive land.
All development shall maintain a fifty-foot minimum buffer to all exterior property lines. Said buffer shall have a berm or be landscaped and remain unoccupied except for entrance roads or utilities. Buffers may include minimum yard requirements for all single-family, two-family and townhouse development.
The Schedule of Area, Bulk and Yard Requirements is included as an attachment to this chapter.
The minimum distance between townhouses and multifamily buildings shall be as follows:
Windowless wall to windowless wall: 20 feet.
Window wall to windowless wall: 30 feet.
Any building face to local street curb or right-of-way: 20 feet.
Any building face to collector street curb: 40 feet.
Any building face to arterial street curb: 50 feet.
Any building face to common parking area: 12 feet.
The Planning Board may reduce the above distances by not more than 1/3 if there is an angle of 20° or more between buildings and if extensive landscaping or buffers are placed between buildings.
All common off-street parking shall be located within 300 feet of the dwelling unit served.
Parking may be permitted in all required minimum yard areas.
Minimum floor area for dwelling units is as follows:
[Amended 12-20-1989 by Ord. No. 32-89; 6-10-1992 by Ord. No. 11-92]
Definitions. For purposes of this Article XI, the following terms are defined as follows:
- AFFORDABLE UNIT
- A housing unit, the sale or rental price of which is established in accordance with this section and which will be sold or rented to a low- or moderate-income family. "Affordable unit" shall be synonymous with the term "lower-income housing unit."
- One or more persons living as a single nonprofit housekeeping unit whether or not related by blood, marriage or otherwise. "Family" shall also be synonymous with "household."
- FIRST MORTGAGE
- The most senior mortgage securing a loan on a unit.
- A termination through legal process of all rights of a mortgagor or a mortgagor's assigns or grantees in a unit covered by a recorded mortgage or through a deed in lieu of foreclosure which has been executed prior to a judicially regulated sale.
- HOUSING ADVISORY COUNCIL
- The Housing Advisory Council (HAC) created pursuant to this section.
- Additions within a unit, including materials, supplies, appliances or fixtures which become a permanent part of, or affixed to, a unit.
- INCLUSIONARY DEVELOPMENT
- A residential housing development in which a specific percentage of the housing units is provided for a reasonable income range of low- and moderate-income households as defined and regulated herein.
- All income, from all sources, for all members of a household occupying a low- or moderate-income unit. "Income" shall include compensation for employment services, interest, rents, dividends, pension benefits and government benefits.
- LOWER-INCOME HOUSEHOLD
- Low-income and moderate-income households.
- LOWER-INCOME HOUSING
- Any housing affordable to low- and moderate-income families.
- LOW-INCOME FAMILY
- A family whose income is no greater than 50% of the median family income of Newark PMSA, with adjustments for family size. The Township shall qualify prospective purchasers of affordable units as low-income families prior to the developer's selling an affordable unit to a prospective purchaser.
- MARKET UNIT
- Any unit in an inclusionary development which is not designated an affordable unit.
- MEDIAN FAMILY INCOME
- The annual median family income figure for Newark PMSA as computed, published and adjusted for household size by the Council on Affordable Housing (COAH).
- MODERATE-INCOME FAMILY
- A family whose income is no greater than 80% and no less than 50% of the median family income of Newark PMSA, with adjustments for family size. The Township shall qualify prospective purchasers of an affordable unit as moderate-income families prior to the developer selling an affordable unit to a prospective purchaser.
- MUNICIPAL HOUSING LIAISON
- The Municipal Housing Liaison appointed by the Morris Township governing body pursuant to this section.
- QUALIFIED PURCHASER
- A person, pursuant to this section:
- (1) Who submits an application for certification as a qualified purchaser to the Municipal Housing Liaison;
- (2) Whose family income at the time of the proposed purchase is within low- or moderate-income levels, as these income levels are defined herein; and
- (3) Who obtains certification as a qualified purchaser from the Municipal Housing Liaison pursuant to this section and the rules and regulations of the Township. Once a qualified purchaser becomes an owner in accordance with the provisions of this section, any increase or decrease in the family income of such owner shall not affect the owner's rights, privileges or obligations.
- STATEMENT OF EXEMPTION
- A statement issued by the Housing Advisory Council confirming that the occupant or intended occupant need not meet the income qualifications for low- and moderate-income housing. The housing unit, however, regardless of its occupant, shall remain affordable for at least 30 years from the date of the initial sale or initial lease.
Lower-income housing requirements.
Number and type of lower-income dwelling units required. All development in the RH-5, RH-16 and RH-20 Zones shall be required to provide at least 20% of all dwelling units to be affordable for lower-income households. A minimum of 15% of all such lower-income units shall be three-bedroom units of which 1/3 will be available to low-income households. The minimum number of lower-income units required for each development shall be as follows:
Low-income. Fifty percent of all lower-income units shall be affordable to families earning not more than 50% of the Newark PMSA median family income, adjusted for family size, as promulgated by COAH and as further adjusted by stratification requirements set forth elsewhere in this section.
Moderate-income. Fifty percent of all lower-income units shall be affordable to families earning not more than 80% of the Newark PMSA median family income, adjusted for family size, as promulgated by COAH and as further adjusted by stratification requirements set forth elsewhere in this section.
The developer shall not impose age restrictions upon the occupants of any low- and moderate-income unit, except as to publicly subsidized or not-for-profit senior citizen housing.
Median family income shall be recalculated on July 1 of each year based on material submitted by COAH.
Affordability standard. A housing unit is affordable to households in a particular income stratum if the housing costs associated with that housing unit do not exceed 25% of the household income, adjusted for household size, of the household whose income is at the lowest level within the stratum.
Housing costs. Housing costs include:
Rental units: rent, including water, sewer, garbage collection, parking and heat, but not electricity or gas, unless included in the rent for market rate units in the development.
Principal and interest. For purposes of determining housing costs, principal and interest costs shall be determined based upon a ninety-percent thirty-year fixed rate fully amortized mortgage. The interest rate shall be the interest rate prevailing in the area for such mortgage as indicated by the rates for such mortgages offered by at least three mortgage lending agencies or institutions who offer mortgages for residential real estate in Morris County and whose mortgages are available to purchasers in the subject development.
Unit size based upon bedrooms. For the purpose of determining sales prices and rental charges, the following table shall be used to determine family size based on the number of bedrooms:
Occupancy of units. All affordable units shall be occupied by the renter or purchaser, except where the HAC determined the transfer to another party to be an exempt transfer or where the HAC waives this provision to relieve a hardship. As used herein, the term "renter" applies only to those units of affordable housing which are approved for occupancy by a renter and shall be subject to the requirements of Subsection B(6)(b) hereof. It shall be a violation of this section for any person to allow the occupancy of any lower-income housing unit by a renter unless such unit has been specifically approved for rental or the HAC has issued a specific written approval of a particular lower-income housing unit for the rental on a temporary basis based upon extraordinary circumstances.
[Amended 7-21-1999 by Ord. No. 22-99]
Subsidies. Government subsidies may be used at the discretion of the developer to fulfill the requirements of this section. The lack of said subsidies shall in no way alter or diminish the lower-income requirements of this section.
Resale and rental of lower-income housing.
All lower-income housing units within the RH-5, RH-16 and RH-20 Zones shall be required to have covenants running with the land to control the resale price of for-sale units or to employ other legal mechanisms which shall be approved by the Township and will ensure that such housing will remain affordable to persons of lower income. Such controls shall remain in effect for at least 30 years from the date of initial sale, and for 30 years from the date of each subsequent resale of any low- or moderate-income unit that is resold during the thirty-year period following the date of initial sale. A lower-income housing unit may not be resold for a price greater than the initial sales price plus the initial sales price multiplied by the percentage increase in the consumer price index between the date of initial sale and the date of listing for resale with the Municipal Housing Liaison, plus the cost of reasonable capital improvements. The cost of capital improvements may be added to the resale price only where the improvements render the unit suitable for a larger household, the cost of the improvements has been determined to be reasonable by the HAC and the resale price, including the cost of the capital improvements, does not exceed the maximum price for which the unit could be resold if it had initially been constructed to accommodate the larger household.
[Amended 3-16-2005 by Ord. No. 5-05]
Rental units shall remain affordable to lower-income households, as defined in Subsection A, for a period of at least 30 years from the date of initial rental. Rents may be increased annually based upon the change in median income as reported by the New Jersey Council on Affordable Housing. The owners of all rental units shall provide legal documentation, to be approved by the Township, to ensure that rental units remain affordable to lower-income households for at least 30 years from the date of initial rental.
In the event that no low- or moderate-income purchaser is found within 60 days after the unit is listed for sale with the Municipal Housing Liaison by notification in writing, the low-income unit may be sold to a moderate-income purchaser or, if none is available, to any interested purchaser and the moderate-income unit to any interested purchaser.
Advertising; applications; waiting list.
For the lower-income units in each development (or phase thereof if phases are marketed separately), advertising designed to make persons throughout the Newark PMSA region aware of the availability of the lower-income units, the terms upon which they will be sold or rented and the application process (including advertising called for by the affirmative marketing plan) shall commence at least 60 days before the first date on which applications will be accepted. Applications shall be accepted for a fixed period for at least 60 days. Applications received from Township residents and employees during the first 15 days of said sixty-day period shall have first priority; otherwise, all eligible applicants shall be selected from the list by lottery until the list is exhausted or all units are filled.
If the list is exhausted without all units being filled, the availability of units shall be readvertised for a period of at least 30 days before the date upon which further applications will be accepted. Such further applications shall be accepted for a fixed period of at least 30 days. This process shall be repeated as many times as necessary to fill all the units.
The Township shall facilitate the re-rental and resale of units to eligible households by maintaining a list of eligible applicants, titled the "waiting list." The Township shall advertise the availability of this list and the procedure for application throughout the Newark PMSA at least once a year. The Township shall also contact all applicants on the list at least once a year and eliminate applicants from the list who are no longer interested in purchasing or renting a lower-income unit or no longer eligible to do so.
A low-income unit may not be sold to a moderate-income household or a moderate-income unit to non-income-eligible household pursuant to Subsection B(6)(c) unless the seller has offered the unit to at least five income-eligible households on the Township waiting list or, if there are fewer than five households on that list, to all the households on the list.
The Township may arrange for an independent third party to perform some or all of the Township functions described in this section.
The developer shall formulate and implement a written affirmative marketing plan acceptable to the HAC. The affirmative marketing plan shall be realistically designed to ensure that lower-income persons of all races and ethnic groups are informed of the housing opportunities in the development. The marketing plan shall include advertising and other similar outreach activities.
Rental units may be converted to condominium units after 15 years from the date of the initial rental, but any sale of condominium units shall be restricted to persons meeting moderate-income eligibility standards. After 30 years from the date of the issuance of the initial certificate of occupancy, including both rental and condominium occupancy, all such units may be sold or rented without restriction.
Phasing of lower-income housing.
Schedule for phasing.
Lower-income housing shall be phased in accordance with the following schedule:
The developer may construct the first 25% of the market housing units without constructing low- and moderate-income housing units. No certificates of occupancy shall be issued for any of the next 25% of market units until 25% of the low- and moderate-income units (of which at least half must be low-income) shall have been issued certificates of occupancy. No certificates of occupancy shall be issued for any of the next 25% of market housing units until at least 75% of the low- and moderate-housing units (of which half must be low-income) have been issued certificates of occupancy. The remaining required low- and moderate-income housing units shall be completed and certificates of occupancy issued before any of the remaining 25% of the market housing units are issued certificates of occupancy.
Any development in RH-5, RH-16 and RH-20 Zoning Districts for which a general development plan (GDP), subdivision or site plan has been approved shall be considered a single development for purposes of this subsection, regardless of whether parts or sections of the development are sold or otherwise disposed of to persons or legal entities other than the one which received approval. All such approvals and conditions of approval shall run with the land. Any tracts or parcels sold shall include documentation satisfactory to the Township setting forth the requirements for low- and moderate-income housing units.
Waiver of fees.
Notwithstanding any ordinance requirement of the Township of Morris, the applicable approving agency may waive the following fees when requested by the applicant at the time of application for every unit designated as lower-income housing:
The Township shall endorse and support any application or waiver of water connection and application fee.
Reduction of housing costs. The low- and moderate-income units shall be constructed in such a way as to minimize utility and operating costs. Specifically, cost-generating items such as electric heat shall not be used unless used in the market units or unless it can be demonstrated to the satisfaction of the HAC that the cost of operation will be comparable to other types of heating units.
Condominium or homeowners' association fees. All lower-income condominium and/or homeowners' association fees, whether monthly or yearly, shall be initially calculated in accordance with Subsection B(3)(a) herein, titled "Housing costs." Thereafter, any increase in fees shall be calculated in a manner so that the ratio between the lower-income unit fees and the market unit fees remains the same as when originally established.
Municipal Housing Liaison. The Township Committee shall appoint annually a Municipal Housing Liaison, whose duties under the guidance and supervision of the Housing Advisory Council (HAC) shall be as follows:
Administer the Township's affordable housing program.
Establish selection procedures to determine qualified occupants for affordable housing.
Determine the allowable sale, resale and rental prices of affordable units.
Develop procedures to assure that continued occupancy of lower-income units meets the rules and regulations set forth in this section and any rules and regulations implemented by the Township Committee.
Bring to the attention of the Township any violations pertaining to the sale, resale, rental or occupancy of lower-income units.
Report to the HAC, at least annually, on the status of affordable housing in Morris Township.
Supply information and respond to questions pertaining to the Township's affordable housing program.
Housing Advisory Council (HAC).
Purpose. There is hereby created a Housing Advisory Council (HAC) whose purpose shall be as follows:
To promulgate rules and regulations necessary to implement the policies and goals of this section. Such rules and regulations shall be in the form of recommendations and shall be forwarded to the Township Committee for consideration and adoption by ordinance.
To approve the sale and resale prices and rentals of lower-income units.
To approve the installation of improvements or amenities within or as part of low or moderately priced housing units once the units are occupied, which would increase the resale price and rentals of such units, and to control the low and moderately priced dwelling unit resale price adjustments for homeowner-installed improvements.
To prepare and forward to the Township Committee of the Township of Morris such rules and regulations as it deems necessary or appropriate to implement the purposes of this section. Said rules and regulations shall be considered by the Township Committee, which shall have the authority to implement them, in whole or in part, by ordinance.
To publicize the Township's affordable housing program and encourage developers to build low- and moderate-income housing.
To hold hearings and make determinations involving the allocations of assessment or maintenance fee costs.
The HAC shall consist of seven members, all of whom shall be appointed by the Mayor with the advice and consent of the Township Committee. The membership of the HAC shall consist of two members of the Township Committee, one member of the Planning Board, two residents of the Township holding no other official position, the Municipal Housing Liaison, and a resident occupying lower-income housing. The Mayor shall annually designate one member to serve as Chairperson of the HAC.
Attendance by four members shall constitute a quorum. Passage of any motion requires an affirmative vote by a majority of members present.
The initial term of office of HAC members shall be one, two or three years, to be designated by the Mayor in making the appointment.
Vacancies; removal for cause. The Mayor, with the consent of the Township Committee, may remove any member of the HAC for cause on written charges served upon the member and after a hearing thereon, at which time the member shall be entitled to be heard either in person or by counsel. A vacancy in the HAC occurring otherwise than by expiration of the term shall be filled for the unexpired term in the same manner as an original appointment.
Exempt transactions and violations.
The following transactions shall be deemed nonsales for purposes of this section, and the owner receiving title by virtue of any of the following transactions shall be entitled to receive from the Township a statement of exemption:
Transfer of ownership between husband and wife.
Transfer of ownership between former spouses ordered as a result of a judicial decree of divorce (and not including sales to third parties).
Transfer of ownership between family members as a result of inheritance.
Transfer of ownership through an executor's deed to any person.
Transfer of ownership through an order of a court of competent jurisdiction.
Such transfer of ownership by any of the above causes neither extinguishes the restrictions and applicability of this section to such affordable unit nor terminates any liens on the unit. Liens must be satisfied in full prior to the subsequent resale of the affordable unit, and all such subsequent resales are fully subject to the terms and provisions of this section.
Violations. Any owner of an affordable unit who violates any of the terms, restrictions or provisions of this section shall have 60 days after service of a written notice to cure such violation. If the owner fails to cure such violation within 60 days, the Township may institute suit to force compliance or terminate the owner's interest in the unit in appropriate cases. Any costs incurred by the Township, including attorneys' fees, shall be part of the relief sought in such an action. In addition to the penalties set forth herein, a violation of any of the terms, restrictions and provisions of this section shall subject the owner, upon conviction thereof, to a fine in an amount not exceeding $1,000 for each violation. Each day following the 60th day after service of written notice of violation shall constitute a separate violation.
[Amended 7-21-1999 by Ord. No. 22-99]
Covenants running with land. The provisions of this section and any conditions of approval for a development which includes lower-income housing shall constitute covenants running with the land with respect to each affordable unit affected and shall bind all purchasers of each such affordable unit, their heirs, assigns and all persons claiming by, through or under their heirs, executors, administrators and assigns. The terms, restrictions and covenants of this section shall, however, automatically expire and terminate at the end of 30 years from the date of the initial sale or rental as a lower-income unit.
Township's right to cure. The Township may, at its option, advance and pay all sums necessary to protect, preserve and retain the unit as an affordable unit subject to the terms of this section. All sums so advanced and paid by the Township shall become a lien against such unit and shall have a higher priority than any lien except the first mortgage lien and liens by duly authorized government agencies. Such sums may include, but are not limited to, insurance premiums, taxes, assessments (public or private) and liens which may be or become prior and senior to any first mortgage as a lien on the unit, or any part thereof. The Township shall have the same priority of lien as was held by the first mortgagee at the time the Township acquires such first mortgage and shall have the right of subrogation with respect to any other claim or lien it satisfies or acquires.
Incorporation. The developer shall incorporate into the master deed and bylaws all terms of this section as amended and supplemented.
Applicability. This section shall apply to all developments in the RH-5, RH-16 and RH-20 Zones to the extent that such section does not affect the terms and conditions of development approvals heretofore granted for construction.
All lower-income housing, as a condition of resale or rental, shall be inspected by the Municipal Housing Liaison. The owner of any such unit shall notify the Municipal Housing Liaison of a suitable inspection date and time for such inspection when the unit is listed for resale.
[Added 7-21-1999 by Ord. No. 22-99; amended 6-17-2015 by Ord. No. 20-15]
A minimum of 20% of the land area of any development, other than single- or two-family housing, and which may include environmentally restricted land, shall be designated for conservation, open space, recreation and/or other common open space.
All property owners and tenants shall have the right to use the common open space.
Common open space may be deeded to the Township, if accepted by the governing body, or to an open space organization or trust or to a private nonprofit organization charged with the provision of recreation activities for the residents of the development.
All common open space deeded to an open space organization, trust or private organization shall be owned and maintained as provided for in N.J.S.A. 40:55D-43.
Notwithstanding any provision set forth elsewhere in this article, the Planning Board may waive any engineering and construction design requirements contained in this article in order to achieve the objectives of the RH-5, RH-16 and RH-20 Zones, provided that the Planning Board shall be satisfied that such a waiver does not jeopardize the public health and safety.
In the event that the Planning Board refuses to grant any requested waiver, the developer may choose one of three impartial housing experts from a list prepared by the Planning Board and have the expert make recommendations, at the expense of the developer, on the necessity for the proposed waivers, modifications or other actions. The expert shall also consider whether the requirement for which the waiver or modification is sought is a necessary minimum standard required for public health and safety.
In the event that the expert determines that, even after full municipal cooperation, it is not economically feasible for the developer to provide the full amount of affordable low- and moderate-income units as defined in this article, the expert may recommend that the developer provide 12% moderate-income and 8% low-income units. Such a modification in the low- and moderate-income obligation shall not be approved unless the expert determines that the Township has substantially complied with his recommendations for municipal actions to reduce costs. In the event that the Planning Board declines to accept one or more of the recommendations of the expert, it shall detail its reasons in writing.
Upon the construction of 335 affordable low- and moderate-income housing units pursuant to this article, the Planning Board, in its discretion, may refuse to consider further applications for site plan approval for townhouses or garden apartments and may amend this chapter accordingly.