Article VI Planned Residential Developments

Planned residential developments shall also include at least two of the following residential uses:

Townhouses and patio houses.

Townhouses-duplex combination only.

Triplexes.

Quadruplexes.

Planned residential developments may also include any of the following nonresidential uses; provided, however, that same may only be used by residents of the development and their guests, and not by the general public:

Parks and playgrounds.

Indoor or outdoor swimming pools, clubhouses, arboretums, botanical gardens, hiking trails and outdoor but not indoor tennis courts.

Size of planned residential developments. No tract, parcel or lot or assemblage of lots may be developed as a planned residential development unless it shall be comprised of a minimum of 10 or more acres of adjoining and contiguous land and unless it has sufficient access to an approved and improved street. For the purpose of this section, internal streets, roads and rights-of-way shall not be deemed to divide acreage of a planned residential development.

Sanitary sewer system. A planned residential development shall be required to be joined to a centralized sanitary sewer system as defined herein. Such linkage to a sanitary sewer system must be reviewed and approved by the State of New Jersey, Department of Environmental Protection, and Bergen County Utilities Authority, the Mayor and Council and the Borough Engineer.

Environmentally sensitive lands. No planned residential development shall be approved as a conditional use where the subject property is located within environmentally sensitive lands. Lands shall be deemed to be environmentally sensitive if they meet one or more of the following criteria:

Fifty percent or more of the site is classified as a wetland area.

Twenty-five percent or more of the site is classified as a floodway.

Fifty percent or more of the property is identified as a flood hazard, flood fringe or flood plain area.

Twenty-five percent or more of the property contains slopes in excess of 15% grade.

Fifteen percent or more of the property contains slopes in excess of 20% grade.

No portion of any lands within 250 feet of the one-hundred-year floodline of the Lake Tappan Reservoir or the Hackensack River shall be utilized for a planned residential development purpose, nor utilized in calculating lands for qualification of a planned residential development.

§ 255-21 Area, yard and bulk requirements.

Any building, structure, area or property that is significant to the history, architecture, archaeology or culture of the United States, the State of New Jersey, the County of Bergen or the Borough of Old Tappan, and has been so designated, shall not be utilized in a planned residential development.

Road frontage. A planned residential development shall be located on a principal roadway in the Borough and shall contain minimum of 50 feet of road frontage measured at the street right-of-way line. All multifamily units within a planned residential development shall have direct access to such principal roadway. Principal roadways shall be limited to the following streets within the Borough:

	Old Tappan Road	(Washington Avenue)
	Central Avenue	(Cripplebush Road)
	DeWolf Road	(Westwood Avenue)
	Orangeburg Road

Centralized water supply facilities. A planned residential development shall be provided with an adequate supply of water from the requisite serving utility. Proof of its availability and sufficient water pressure shall be provided to the Planning Board at the time of submission of an application for development.

Except as provided in Subsection D(1)(a) of § 255-22 hereof, the applicant shall provide and maintain a buffer area, as defined in § 255-4 for a planned residential development which shall be no less than 50 feet in width from all external property lines of the site. Such buffer area shall be required to provide a year-round visual screen, as determined by the Planning Board.

[Added 4-24-2000 by Ord. No. 714-00]

The following area, yard and bulk requirements shall apply to planned residential developments as a permitted conditional use:

The minimum sizes of lots, the number and minimum sizes of yards and building bulk controls for planned residential developments shall be governed by the accompanying schedule entitled "Zoning, Area and Bulk Schedule for Old Tappan, New Jersey" which, together with all explanatory matter thereon, is attached to and made part of this chapter.[1]

[1]

Editor's Note: The Zoning, Area and Bulk Schedule is included at the end of this chapter.

All buildings and structures within a planned residential development shall be set back no less than 70 feet from any external street right-of-way line, as existing, or such distance as may be determined by the Bergen County Planning Board as part of its review procedures, whichever is greater.

All setbacks shall be measured from the right-of-way line of the street, but if the Master Plan or Official Map of the Borough shows the location of a right-of-way line different from the existing right-of-way line, the required setbacks shall be measured from the right-of-way line as shown on the Official Map, if any, or the Master Plan.

At all street intersections, no obstruction to vision exceeding 30 inches in height above the grade to be established at the curb, other than existing buildings, posts, columns, trees or proposed necessary traffic control devices, shall be permitted in an area bounded by the intersecting curbline and a line joining points each 30 feet distant from the intersection of the curblines along the curbline of each street.

§ 255-22 Land use intensity and distribution of dwelling units.

The following requirements as to the density and distribution of residential units shall apply to planned residential developments as permitted conditional uses:

Overall residential density. The maximum overall residential density for a planned residential development shall be six units per acre of total land area. For the purpose of this section, internal streets, roads and right-of-ways shall be included in the acreage calculations.

Low- and moderate-income housing. Every planned residential development shall provide low- and moderate-income housing as defined herein as part of the development. A planned residential development shall provide a minimum of 20% of its dwelling units for low- and moderate-income households; provided, however, that if the planned residential development meets its low- and moderate-income housing obligation with rental housing, the planned residential development shall provide sufficient low- and moderate-income housing which will result in total credits for affordable housing from the Council on Affordable Housing to the Borough in an amount equal to at least 20% of the dwelling units in the planned residential development.

Distribution of low- and moderate-income dwelling units. Within a planned residential development 50% of all units for low- and moderate-income housing shall be for moderate income households and 50% shall be for low income households, both as defined here.

Distribution of dwelling types.

Single-family dwellings.

Within a planned residential development there shall be a minimum of three types of dwelling units. A minimum of 5% of the total number of units permitted shall be one-family dwellings which shall meet the area, yard and bulk requirements of the RA 15 Zone as it applies to single-family residences. The one-family dwellings shall be located adjacent to or near existing one-family dwellings so as to form a transition zone between the planned residential development and such existing one-family dwellings. The remaining units may be constructed as townhouses, patio homes, townhouse duplexes, triplexes and quadruplexes, provided that they comply with the minimum area, yard and bulk standards of this section, as provided herein.

One-family dwellings proposed and constructed within any planned residential development may only be counted toward the five-percent minimum requirement for that development, and may not be counted toward such five-percent minimum requirement for any adjacent or other planned residential development.

As a condition to any approval granted to such planned residential development, the owner shall record a restrictive covenant or other deed restriction, in form satisfactory to the Planning Board Attorney, provided that no further development or construction shall be permitted with respect to such single-family dwellings or, if applicable, with respect to the lots on which such dwellings are erected.

The RA 15 Zone minimum front yard, side yard, and rear yard area requirements for a one-family residential dwelling within a planned residential development shall supersede the buffer area requirements of § 255-20H hereof, where such yard is situated within the required buffer area of a planned residential development.

[Amended 4-24-2000 by Ord. No. 714-00]

Economic segregation prohibited. Except where a planned residential development meets its requirement for low- and moderate-income housing by providing low- and moderate-income rental housing, within a planned residential development there shall be no economic segregation of dwelling units separating low- and moderate-income units from marketplace units, except that one-family dwellings may be separated from low- and moderate-income units; and two building groups of townhouses adjacent to each other, regardless of the total number of dwelling units contained therein, shall contain at least one low- and moderate-income unit as part of the two building groups.

Handicapped accessible units. Within a planned residential development, at least 4% of the dwelling units shall be designed for occupancy by handicapped persons, in accordance with standards promulgated by the handicapped persons, in accordance with standards promulgated by the Federal Department of Housing and Urban Development.

Low- and moderate-income units.

Within a planned residential development, the distribution of low- and moderate-income units shall be governed by the following standards:

	Percent Distribution of Dwelling Units
	Number of Bedrooms	Percent Low- and Moderate-Income Dwellings
	Efficiency and one-bedroom*	50%
	Two-bedroom	35%
	Three-bedroom	15%
	Total	100%
	*No more than 20% of the total units may be efficiency units.

Within planned residential developments, low- and moderate-income housing units shall be built in accordance with the following schedule:

	Minimum Percentage Low- and Moderate-Income Units Completed	Percentage of Market Housing Units Completed
	0	25
	10	25 + 1 unit
	50	50
	75	75
	100	90
	—	100
	In the event COAH waives this requirement for any developer, then this requirement may also be waived by the Borough by resolution of the Mayor and Council.

The construction of low- and moderate-income units, as part of a planned residential development, shall be the responsibility of the applicant. Any plan for such development shall be subject not only to conditional use approval as provided for herein, but also subject to site plan approval by the Planning Board, pursuant to Chapter 218, Subdivision of Land.

Transfer of low- and moderate-income housing unit obligations.

Findings.

It is in the best interests of the citizens of the Borough to provide low- and moderate-income housing within the Borough consistent with the standards established by the Supreme Court of New Jersey in its "Mount Laurel II" decision and the New Jersey Legislature in the Fair Housing Act, N.J.S.A. 52:27D-301 et seq.

In furtherance of providing for its fair share of low- and moderate-income housing, the Borough has enacted an amendment to this chapter which provides for the construction of low- and moderate-income housing within the Borough as a conditional higher density use.

N.J.S.A. 52:27D-325 authorizes the Borough to provide for the construction of low- and moderate-income housing in such manner as may be necessary or useful for those purposes.

Construction of low- and moderate-income housing on Borough owned property will further the low- and moderate-income housing objectives.

(e)

Permitting a developer, with the Borough's consent, to transfer its obligation to build low- and moderate-income housing from the developer's site to the RB-130 Residence District facilitates the construction of low- and moderate-income housing in the RB-130 Residence District.

Transfer of obligation to other lands. A developer, with the written consent of the Borough incorporated in a developer's agreement, may transfer all or part of this low- and moderate-income housing obligation to another site within the Borough, which other site shall be on Borough owned land in an RB 130 Residential district. Such a transfer shall be in furtherance of the Borough providing low- and moderate-income housing consistent with N.J.S.A. 52:27D-325.

Transfer of low- and moderate-income housing unit obligations via in-lieu contribution.

In-lieu contribution. A developer and the Borough may enter into an agreement whereby the developer may make a contribution to the Borough in accordance with § 45-38 of Chapter 45, Land Use Procedures, of the Code of the Borough of Old Tappan in lieu of constructing low- and moderate-income housing on-site as per N.J.A.C. 5:93-8.10(c).

Distribution of low- and moderate-income dwelling units. Of the remaining low- and moderate-income housing units built on site, 50% shall be for moderate-income households and 50% shall be for low-income households in accordance with Subsection C of this § 255-22 and COAH regulations. In the event COAH waives this requirement for any developer, then this requirement may also be waived by the Borough.

Limitations. In-lieu contributions shall be made in accordance with the applicable provisions of COAH regulations and Borough ordinances. Further, developers transferring 50% or more of their low- and moderate-income housing obligation in accordance with Subsection E of this § 255-22 shall not be permitted to make an in-lieu contribution in accordance with this Subsection F of § 255-22.

§ 255-23 Open space requirements.

The following requirements as to open space shall apply to a planned residential development as a conditional use:

At least 20% of the total land area of any planned residential development shall be designed for and devoted to open space. In computing such twenty-percent requirement, common recreation areas accessory to the residential use and required buffer areas shall be included as open space.

Any open space proposed as part of a planned residential development shall comply with the same open space design standards pertaining to residential cluster developments, as set forth in § 218-22 of this Code.

Any common open space proposed as part of a planned residential development shall comply with the same maintenance requirements pertaining to residential cluster developments, as set forth in § 218-53 of this Code.

§ 255-24 Building relationships.

In all planned residential developments, where dwelling units are not being subdivided into individual lots and the circulation system is privately owned and maintained, the following shall be the minimum distance between buildings other than one-family dwellings:

The front of one building to the front of another building: 75 feet.

The front of one building to the side of another building: 60 feet.

The front of one building to the rear of another building: 75 feet.

The side of one building to the side of another building (other than an attached unit): 30 feet.

The side of one building to the rear of another building: 60 feet.

§ 255-25 Affordability controls, marketing and qualification for low- and moderate-income housing units.

The rear of one building to the rear of another building: 75 feet.

The maximum length of a building unit containing townhouses shall be the lesser of five dwelling units or 155 feet in length.

The maximum length of a building unit containing townhouses and duplexes or flats shall be the lesser of six dwelling units in the total structure or 160 feet in length.

The applicant shall designate on the plans submitted the front and rear of each building.

Purpose and scope. This section is designed to provide assurances that low- and moderate-income units are created with controls on affordability over time and that low- and moderate-income people occupy these units. To this end, Old Tappan designates the Old Tappan Affordable Housing Agency (hereinafter "the agency") with the responsibility of ensuring the affordability of sales and rental units over time. The agency shall also be responsible for affirmative marketing; income qualification of low- and moderate-income households; placing income eligible households in low- and moderate-income units upon initial occupancy; placing income eligible households in low- and moderate-income units as they become available during the period of affordability controls; and enforcing the terms of the deed restriction and mortgage loan.

Placing households in low- and moderate-income units. In placing households in low- and moderate-income units, Old Tappan shall utilize the following verification and certification procedures:

Every household member 18 years of age or over who will live in the affordable unit and receives income shall be required to provide income documentation as applicable and determined by the reviewer for the agency. This includes income received by adults on behalf of minor children for their benefit. Household members 18 years of age or over not receiving income must produce documentation of current status.

Verification may include, but is not limited to, the following:

Four consecutive pay stubs including overtime, bonuses, or tips dated within 120 days of the interview date or a letter from the employer stating present annual income figure as projected annually.

A copy of regular IRS Form 1040 (tax computation form), 1040A, or 1040EZ as applicable and state income tax returns filed for each of the three years prior to the date of the interview;

A letter or appropriate reporting form verifying benefits such as social security, unemployment, welfare, disability or pension income (monthly or annually);

A letter or appropriate reporting form verifying any other sources of income claimed by the applicant such as alimony and child support;

(e)

Reports that verify income from assets to be submitted by banks or other financial institutions managing trust funds, money market accounts, certificates of deposit, stocks or bonds;

(f)

Evidence or reports of income from assets such as real estate or businesses that are directly held by any household member;

(g)

Evidence or reports that verify assets that do not earn regular income such as non-income-producing real estate or savings that do not earn interest; and

(h)

A notarized statement of explanation in such form as to be satisfactory to the reviewer.

Generally, sources of annual income shall be based on regular income reported to the IRS and which can be utilized for mortgage approval. Household annual gross income shall be calculated by projecting current gross income over a twelve-month period.

Income includes but is not limited to wages, salaries, tips, commissions, alimony, regularly scheduled overtime, pensions, social security, unemployment compensation, AFDC, verified regular child support, disability, net income from business or real estate, and income from assets such as savings, certificates of deposit, money market, mutual funds, stocks and bonds and imputed income from non-income-producing assets such as equity in real estate.

Assets not earning a verifiable income shall have an imputed interest income using a current average annual savings interest rate. Assets not earning income include present real estate equity. Applicants owning real estate must produce documentation of a market value appraisal and outstanding mortgage debt. The difference will be treated as the monetary value of the asset and the imputed interest added to income.

Income from assets that have delayed earnings, such as IRA's or annuity programs shall not be included in current income until such payments are being received. However, these assets must be reported and verified.

Net rent from real estate is considered income after the monthly mortgage payment including real estate taxes and insurance is deducted. Other expenses are not deductible. In addition, the equity in the rented real estate is considered an asset and will have the imputed interest income on the calculated value of equity added to income.

Income does not include payments, rebates or credits received under federal or state low-income home energy assistance programs, food stamps, payments received for care of foster children, relocation assistance benefits, income of live-in attendants, scholarships, student loans, personal property such as automobiles, lump-sum additions to family assets such as inheritances, one-time lottery winnings, and insurance settlements except for additional income earned from these additions, and casual, sporadic or irregular gifts and bonuses.

(9)

Standard credit information services that provide conventional credit and tenant reports may be utilized when certifying a household with required written permission from the household. An unsatisfactory credit history or credit information that demonstrates a disproportionate debt to income ratio may result in a denial of certification. Court-ordered payments for alimony or child support to another household shall be considered a regular monthly debt whether or not it is being paid regularly.

(10)

Households whose total gross annual income is measured at 50% or below 50% of the authorized median income guideline shall be certified as low-income households and referred to units designated for low-income households.

(11)

Households whose total gross annual income is measured above 50% but below 80% of the authorized median income shall be certified as moderate income households and referred to units designated for moderate income households.

(12)

Generally, households will be referred to units where predetermined total monthly housing costs correspond to the household's calculated ability to pay using 28% of gross monthly income as a standard for home ownership and 30% of gross monthly income as a standard for rental units.

(13)

At the discretion of the agency, households may also be required to produce documentation of household composition for determining the correct unit size and the applicable median income guide.

(14)

Generally, households will be referred to available units using the following standards for occupancy:

A maximum of two persons per bedroom;

Children of same sex in same bedroom;

Unrelated adults or persons of the opposite sex other than husband and wife in separate bedrooms; and

Children not in the same bedroom with parents.

(15)

Households may be considered for units other than as above, but in no case shall a household be referred to a unit that provides for more than one additional bedroom per household occupancy standards as stated in Subsection B(14) above.

(16)

A form for certification shall be prepared and signed by the agency. Only households receiving certification shall be referred to affordable housing units.

(17)

Certified households who reject an opportunity for affordable housing may be replaced on the referral list at their request and may be reinterviewed for certification when their name appears on a listing for a subsequent unit.

(18)

Certification shall be valid for no more than 120 days unless a valid sales contract or lease has been executed within that time period. In this event, certifications shall be valid until such time as the sales contract or lease is held invalid and no occupancy has occurred. Certifications may be renewed in writing at the request of a certified household for no more than an additional period of 120 days at the discretion of the agency.

(19)

Households who are denied certification may make a written request for a redetermination. Households shall be required to produce additional documentation to support their claim. Households which are denied certification a second time may request a hearing by forwarding a written request to the agency within 30 days following the household's receipt of a denial notification. If a written request has not been received within the thirty-day time period, the ineligible determination will be final. The hearing decision shall be final.

Length of controls.

Old Tappan shall determine measures to assure that newly constructed low- and moderate-income sales units remain affordable to low- and moderate-income households for an appropriate period of not less than 30 years. The agency shall do so by requiring all conveyances of newly constructed low- and moderate-income sales units subject to the Act to contain the deed restriction and mortgage lien adopted by the New Jersey Council on Affordable Housing (hereinafter "COAH").

Municipalities receiving state aid pursuant to P.L. 1978, c .14 (N.J.S.A. 52:27D-178 et seq.) that exhibits one of the characteristics delineated in N.J.A.C. 5:93-2.3(b) shall adopt measures to assure that newly constructed low- and moderate-income sales units remain affordable to low- and moderate-income households for a period of not less than 10 years. The agency shall do so by requiring all conveyances of newly constructed low- and moderate-income sales units subject to the Act to contain the deed restrictions and mortgage lien adopted by COAH.

Rehabilitated owner-occupied single-family housing units that are improved to code standard shall be subject to affordability controls for at least six years.

Rehabilitated renter-occupied housing units that are improved to code standard shall be subject to affordability controls for at least 10 years.

Old Tappan will assure that newly constructed low- and moderate-income rental units remain affordable to low- and moderate-income households for a period of 30 years. Municipalities receiving state aid pursuant to P.L. 1978, c. 14 (N.J.S.A. 52:27D-178 et seq.) that exhibit one of the characteristics delineated in N.J.A.C. 5:93-2.3(b) shall adopt measures to assure that newly constructed low- and moderate-income rental units remain affordable to low- and moderate-income households for a period of at least 10 years. Affordability controls on rental units may exceed the prescribed periods if the developer agrees to a longer period.

Housing units created through conversion of a nonresidential structure shall be considered a new housing unit and shall be subject to controls on affordability as delineated in Subsections C(1), (2) and (5) above.

Affordability controls on accessory apartments shall be for a period of at least 10 years. However, in order to be eligible for a rental bonus pursuant to N.J.A.C. 5:93-5.13, controls on affordability shall extend for a period of 30 years.

Alternative living arrangements shall be controlled in a manner, suitable to COAH, that provides assurances that such a facility will house low- and moderate-income households for at least 10 years.

General provisions concerning uniform deed restriction liens and enforcement through certificates of occupancy or reoccupancy on sales units.

A certificate of occupancy for initial occupancy of a low- or moderate-income sales unit shall not be issued unless there is a written determination by the agency that the unit is to be controlled by a deed restriction and mortgage lien as adopted by COAH. The agency shall make such determination within 10 days of receipt of a proposed deed restriction and mortgage lien. Amendments to the deed restriction and lien shall be permitted only if they have been approved by COAH. A request for an amendment to the deed restriction and lien may be made by the agency, Old Tappan or the developer.

Initial occupancy of a low- or moderate-income sales unit shall not be permitted prior to issuance of a certificate of occupancy in accordance with Subsection D(1) above.

A certificate of reoccupancy shall be required for any occupancy of a low- or moderate-income sales unit resulting from a resale and shall not issue such certificate unless there is a written determination by the agency that the unit is to be controlled by the deed restriction and mortgage lien prior to issuance of a certificate of occupancy, regardless of whether the sellers had executed the deed restriction and mortgage lien adopted by COAH upon acquisition of the property. The agency shall make such determination within 10 days of receipt of a proposed deed restriction and mortgage lien.

The certificate of reoccupancy shall not be required in sales for which controls are allowed to expire or in which the repayment option is being exercised pursuant to N.J.A.C. 5:93-9.4.

The mortgage lien and the deed restriction shall be filed with the records office of Bergen County. The lien and deed restriction shall be in the form adopted by COAH, unless amendments have been approved by COAH, for a specific municipality.

The deed restriction, including the repayment clause, and the mortgage lien shall have priority over all mortgages on the property except for a first mortgage placed on the property by the mortgagee prior to the expiration of resale controls.

Option-to-buy sales units.

The deed restriction governing the deeds of low- and moderate-income units shall include an option permitting purchase of the affordable housing unit at the maximum allowable restricted sales price at the time of the first nonexempt sale after controls on affordability have been in effect on the unit for the period specified in N.J.A.C. 5:93-9.2. The option to buy shall be available to the municipality, the Department of Community Affairs, the agency, or a qualified nonprofit as defined by COAH.

All deed restrictions governing low- and moderate-income units shall require the owner to notify the agency and COAH by certified mail of any intent to sell the unit 90 days prior to entering into an agreement for the first nonexempt sale after controls have been in effect on the housing unit for the period specified in N.J.A.C. 5:93-9.2.

Upon receipt of such notice, the option to buy the unit at the maximum allowable restricted sales price or any mutually agreeable sales price that does not exceed the maximum allowable sales price shall be available for 90 days. The agency shall notify the Department of Community Affairs, the agency, and COAH that the unit is for sale. If the Borough exercises this option, it may enter into a contract of sale. If the Borough fails to exercise this option within 90 days, the first of the other entities giving notice to the seller of its initial purchase during the ninety-day period shall be entitled to purchase the unit. If the option to purchase the unit at the maximum allowable restricted sales price is not exercised by a written offer to purchase the housing unit within 90 days of receipt of the intent to sell, the owner may proceed to sell the housing unit (pursuant to N.J.A.C. 5:93-9.8). If the owner does not sell the unit within one year of the date of the delivery of notice of intent to sell, the option to buy the unit shall be restored, and the owner shall be required to submit a new notice of intent to sell 90 days prior to any future proposed date of sale.

Any option to buy a housing unit at the maximum allowable restricted sales price shall be exercised by certified mail and shall be deemed exercised upon mailing.

Municipal option; sales units.

If Old Tappan elects to purchase a low- or moderate-income unit pursuant to N.J.A.C. 5:93-9.4, it may:

Convey or rent the housing unit to a low- or moderate-income purchaser or tenant at a price or rent not to exceed the maximum allowable restricted sales price or rent, provided that the unit is controlled by a deed restriction in accordance with COAH regulations or an alternative approved by COAH; or

Convey the unit at fair market value subject to the following provisions:

[1]

If Old Tappan purchases low-income housing units, it shall maintain them as low-income housing units.

[2]

If Old Tappan elects to purchase low- or moderate-income housing units and convey them at a fair market value, it shall:

[a]

Notify COAH of any proposed sale and sales price 90 days before closing;

[b]

Notify COAH of the price differential as defined in N.J.A.C. 5:93-1.3; and

[c]

Deposit the price differential in an interest-bearing housing trust fund devoted solely to the creation, rehabilitation or maintenance of low- and moderate-income housing.

Money deposited in housing trust funds may not be expended until Old Tappan submits and COAH approves a spending plan in accordance with N.J.A.C. 5:93-5.1(c). Money deposited in housing trust funds shall be subject to the restrictions, monitoring requirements and penalties outlined in N.J.A.C. 5:93-8.15 through 17.

State option; sales units. When the Department of Community Affairs or agency elects to purchase a low- or moderate-income unit pursuant to N.J.A.C. 5:93-9.4, it may:

Convey or rent the housing unit to a low- or moderate-income purchaser or tenant at a price or rent not to exceed the allowable restricted sales price or rental; or

Convey the unit at fair market value and utilize the price differential to subsidize the construction, rehabilitation or maintenance of low- and moderate-income housing within the appropriate housing region.

Nonprofit option; sales units.

Nonprofit agencies may apply to COAH at any time for the right to purchase low- or moderate-income units subsequent to the period of controls on affordability, provided that the unit remains controlled by a deed restriction in accordance with COAH rules and regulations, or an alternative approved by COAH.

Nonprofit agencies that have been designated by COAH shall be eligible to purchase low- or moderate-income units pursuant to N.J.A.C. 5:93-9.4 for the sole purpose of conveying or renting the housing unit to a low- or moderate-income purchaser or tenant at a price or rent not to exceed the allowable restricted sales price or rental. Low-income units shall be made available to low-income purchasers or tenants, and the housing unit shall be regulated by the deed restriction and lien adopted by COAH, in accordance with COAH rules and regulations. The term of the controls on affordability shall be the same as those required by N.J.A.C. 5:93-9.2.

Seller option; sales units.

An eligible seller of a low- or moderate-income unit which has been controlled for the period established in N.J.A.C. 5:93-9.2 who has provided notice of an intent to sell may proceed with the sale if no eligible entity as outlined in N.J.A.C. 5:93-9.4(c) and 9.7 exercises its option to purchase within 90 days.

Subject to N.J.A.C. 5:93-9.9, the seller may elect to:

Sell to a qualified low- and moderate-income household at a price not to exceed the maximum permitted sales price in accordance with existing COAH rules, provided that the unit is regulated by the deed restriction and lien adopted by COAH in accordance with COAH rules and regulations, for a period of at least 20 years; or

Exercise the repayment option and sell to any purchaser at market price, provided that 95% of the price differential is paid to the agency, as an instrument of the Borough, at closing.

If the sale will be to a qualified low- and moderate-income household, the agency shall certify the income qualifications of the purchaser and shall ensure the housing unit is regulated by the deed restriction and lien required by COAH in accordance with COAH rules and regulations.

The agency shall examine any contract of sale containing a repayment option to determine if the proposed sales price bears a reasonable relationship to the housing unit's fair market value. In making this determination, the agency shall not approve any contract of sale where there is a determination that the sales price does not bear a reasonable relationship to a fair market value. The agency shall make a determination within 20 days of receipt of the contract of sale and shall calculate the repayment option payment.

The agency shall adopt an appeal procedure by which a seller may submit written documentation requesting the agency to recompute the repayment obligation if the seller believes an error has been made, or to reconsider a determination that a sales price does not bear a reasonable relationship to fair market value.

The repayment shall occur at the date of closing and transfer of title for the first nonexempt transaction after the expiration of controls on affordability.

Repayment proceeds shall be deposited in a housing trust fund (see N.J.A.C. 5:93-8.14) and may be used as per N.J.A.C. 5:93-8.15. Money deposited in housing trust funds may not be expended until the municipality submits and COAH approves a spending plan. See N.J.A.C. 5:93-5.1(c).

Old Tappan rejection of repayment option; sales units.

Old Tappan shall have the right to determine the most desirable means of promoting an adequate supply of low- and moderate-income housing and to prohibit the exercise of the repayment option and maintain controls on lower income housing units sold within the municipality beyond the period required by N.J.A.C. 5:93-9.2. Such determination shall be made by resolution of the Old Tappan governing body and shall be effective upon filing with COAH and the agency. The resolution shall specify the time period for which the repayment option shall not be applicable. During such period, no seller in Old Tappan may utilize the repayment option permitted by N.J.A.C. 5:93-9.8.

If Old Tappan exercises the option outlined in Subsection J(1) above, it shall:

Provide public notice in a newspaper of general circulation; and

Notify the agency and COAH of its action.

The agency shall ensure that the deed restriction on all affected housing units reflects the extended periods of controls.

Continued application of options to create, rehabilitate or maintain low- and moderate-income units; sales units. When a housing unit has been maintained as a low- or moderate-income unit after controls have been in effect for the period specified in N.J.A.C. 5:93-9.2, the deed restriction governing the housing units shall allow the Borough, the state, nonprofit agencies and sellers of low- and moderate-income units to again exercise all the same options as provided in this section.

Eligible capital improvements prior to the expiration of controls; sales units.

Property owners of single-family, owner-occupied housing may apply to the agency for permission to increase the maximum price for eligible capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household. Property owners shall apply to the agency if an increase in the maximum sales price is sought.

At resale, all items of property which are permanently affixed to the units and/or were included when the unit was initially restricted (for example, refrigerator, range, washer, dryer, dishwasher, wall-to-wall carpeting) shall be included in the maximum allowable resale price. Other items of property may be sold to the purchaser at a reasonable price that has been approved by the agency at the time of signing the agreement to purchase. The purchase of central air conditioning installed subsequent to the initial sale of the unit and not included in the base price may be made a condition of the unit resale, provided that the price has been approved by the agency. Unless otherwise permitted by COAH, the purchase of any property other than central air conditioning shall not be made a condition of the unit resale. The owner and the purchaser must personally certify at the time of closing that no unapproved transfer of funds for the purpose of selling and receiving property has taken place at resale.

Subsidy to ensure affordability prior to the expiration of controls; sales units. If the use of median income data adopted by COAH to index the cost of housing renders a unit unaffordable to a low- or moderate-income household at the time of resale, Old Tappan shall not lose credit for the housing unit, provided that adequate controls on affordability remain in place, but Old Tappan may subsidize the housing unit to maintain affordability.

Impact of foreclosure on resale while controls are in place; sales units. A judgment of foreclosure or a deed in lieu of foreclosure to a financial institution regulated by state and/or federal law or to a lender on the secondary mortgage market (including, but not limited to, the Federal National Mortgage Association, the Home Loan Mortgage Corporation, the Government National Mortgage Association or an entity acting on their behalf) shall extinguish controls on affordable housing units, provided that there is compliance with N.J.A.C. 5:93-9.14. Notice of foreclosure shall allow the agency, the Borough of Old Tappan, the Department of Community Affairs, or a nonprofit entity to purchase the affordable housing unit at the maximum permitted sales price and maintain it as an affordable unit for the balance of the intended period of controls. Failure to purchase the affordable housing unit shall result in COAH adding that unit to the municipal present and prospective fair share obligation. Failure of the financial institution to provide notice of a foreclosure action to the agency shall not impair any of the financial institution's rights to recoup loan proceeds; shall not negate the extinguishment of controls or the validity of the foreclosure; and shall create no cause of action against the financial institution.

Excess proceeds upon foreclosures; sales units. In the event of a foreclosure sale, the owner of the affordable housing unit shall be personally obligated to pay the agency responsible for assuring affordability, any surplus funds, but only to the extent that such surplus funds exceed the difference between the maximum price permitted at the time of foreclosure and the amount necessary to redeem the debt to the financial institution, including costs of foreclosure.

Annual indexed increases while controls are in place; sales and rentals.

The price of an owner-occupied housing unit and the rents of affordable housing 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 agency be lower than the last recorded purchase price.

With the exception of rentals constructed pursuant to low-income tax credit regulations, the rent of a low- or moderate-income housing unit 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 tax credit regulations shall be indexed pursuant to the regulations governing low income tax credits.

Procedures for initial sales, resale prior to the expiration of controls and rentals.

Low- and moderate-income sales units shall not be offered to non-income-eligible households at initial sale without COAH approval. Parties that petition COAH for such approval shall document efforts to sell housing units to income-eligible households and shall adhere to the procedures outlined in N.J.A.C. 5:91-12.

Persons wishing to sell affordable units shall notify the agency responsible for assuring affordability of the intent to sell. If no eligible buyer enters a contract of sale for the unit within 90 days of notification, the agency shall have the option to purchase the unit for a negotiated price that shall not exceed the maximum price permitted based on the regional increase in the median income as defined by HUD or other recognized standards adopted by COAH. If the agency does not purchase the unit, the seller may apply for permission to order the unit to a non-income-eligible household at the maximum price permitted. The seller shall document efforts to sell the unit to an income-eligible household as part of this application. In reviewing the request, the agency shall consider the specific reasons for any delay in selling the housing unit and the hardship to the seller in continuing to offer the affordable unit to an income-eligible applicant. The inability to sell a unit for the maximum permitted resale price shall not, in itself, be considered an appropriate reason for allowing a housing unit to be sold to a non-income-eligible household. If the request is granted, the seller may offer a low-income housing unit to a moderate-income household and a moderate-income housing unit to a household earning in excess of 80% of median. In no case shall the seller be permitted to receive more than the maximum price permitted. In no case shall a sale pursuant to this section eliminate the resale controls on the unit or permit any subsequent seller to convey the unit in full compliance with the terms of this section.

Owners of low- and moderate-income rental units shall not offer rental units to a non-income-eligible household without prior approval of COAH. Parties that petition for such approval shall document all efforts to rent to income-eligible households and demonstrate to the satisfaction of COAH that alternatives, such as a reduction in rent, are not feasible. Parties that petition COAH shall adhere to the procedures outlined in N.J.A.C. 5:91-12.

Affirmative marketing plan.

Purpose. The Borough has a fair-share obligation of 98 units of which 98 are new construction. This subsection will apply to all planned residential developments that contain proposed low- and moderate-income units. 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. 5:93-11. 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 is in the housing region consisting of Bergen, Hudson, Passaic and Sussex Counties. The affirmative marketing program is a continuing program.

Advertisement. All newspaper articles, announcements and requests for applications for low- and moderate-income units will appear in the following daily regional newspapers/publications: The Record, The Star Ledger and Jersey Journal. The primary marketing will take the form of at least one press release sent to the above publications and a paid display advertisement in each of the above newspapers. Additional advertising and publicity will be on an as-needed basis. The advertisement will include a description of the street address of units, general directions to housing units, the number of bedrooms per unit, the range of prices/rents, the size of units, income information, and location of applications including business hours and where/how applications may be obtained. All newspaper articles, announcements and requests for applications for low- and moderate-income housing will appear in the following neighborhood-oriented weekly newspaper within the region: Community Life.

Applications. The following is the location of applications, brochure(s), sign(s) and/or poster(s) used as part of the affirmative marketing program: the Borough Hall, the Borough Library and the developer's sales office. Applications will be mailed to prospective applicants upon request.

Other contacts. The following is a listing of community contact person(s) and/or organization(s) in Bergen, Hudson, Passaic and Sussex Counties 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: Housing Authority of Bergen County, Community Resource Council, Bergen County Human Services, Urban League, Fair Housing Council and the Board of Social Services.

Random selection. The following is a description of the random selection method that will be used to select occupants of low- and moderate-income housing: Certified households shall be chosen at random for available units by lottery system administered by the Affordable Housing Agency.

Affordable Housing Agency. The Affordable Housing Agency shall administer the affirmative marketing program. The Affordable Housing Agency has the responsibility to income-qualify low- and moderate-income households; to place income-eligible households in low- and moderate-income units upon initial occupancy; to provide for the initial occupancy of low- and moderate-income units with income-qualified households; to continue to qualify households for reoccupancy of units as they become vacant during the period of affordability controls; to assist with advertising and outreach to low- and moderate-income households; to enforce the terms of the deed restriction and mortgage loan as per N.J.A.C. 5:93-9.1; and to comply with monitoring and reporting requirements as per N.J.A.C. 5:93-11.6 and 12.1.

Preference. Households who live or work in the COAH-established housing region may be given preference for sales and 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. The Borough intends to comply with N.J.A.C. 5:93-11.7.

§ 255-26 Standards pertaining to low- and moderate-income housing units.

Developer assistance. All developers of low- and moderate-income housing units will be required to assist in the marketing of the affordable units in their respective developments.

(9)

Duration of marketing program. 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.

Purpose and scope. The purpose of this section is to provide standards that pertain to the creation of low- and moderate-income housing units. The rules that follow shall pertain to all planned residential developments. This section provides standards on the distribution of low- and moderate-income units; bedroom distribution; and establishing the rents and prices of low- and moderate-income units.

Distribution of low- and moderate-income units.

At least half of all units within each planned residential development shall be affordable to low-income households.

At least 1/3 of all units in each bedroom distribution (pursuant to Subsection C hereinbelow) shall be affordable to low-income households.

Bedroom distribution.

Planned residential developments shall be structured in conjunction with realistic market demands so that:

The combination of efficiency and one-bedroom units is at least 10% and no greater than 20% of the total low- and moderate-income units;

At least 30% of all low- and moderate-income units are two bedroom units; and

At least 20% of all low- and moderate-income units are three bedroom units.

Low- and moderate-income units restricted to senior citizens may utilize a modified bedroom distribution. At a minimum, the number of bedrooms shall equal the number of senior citizen low- and moderate-income units within the development. The standard can be met by creating all one-bedroom units or by creating a two-bedroom unit for each efficiency unit.

Establishing rents and prices of units.

The following criteria, in conjunction with realistic market information, shall be used in determining maximum rents and sale prices:

Efficiency units shall be affordable to one-person households;

One-bedroom units shall be affordable to 1.5-person households;

Two-bedroom units shall be affordable to three-person households; and

Three-bedroom units shall be affordable to 4.5-person households.

Median income by household size shall be established by a regional weighted average of the uncapped Section 8 income limits published by HUD. The maximum average rent and price of low- and moderate-income units within each planned residential development shall be affordable to households earning 57.5% of median income. Moderate-income sales units shall be available for at least three different prices, and low-income sales units shall be available for at least two different prices.

In averaging 57.5% under Subsection D(2) above, developers may establish one rent for a low-income unit and one rent for a moderate-income unit for each bedroom distribution.

Low- and moderate-income units shall utilize the same heating source as market units within the planned residential development.

The initial price of a low- and moderate-income owner-occupied single-family housing unit shall be established so that after a down payment of 5%, the monthly principal, interest, homeowner and private mortgage insurance, property taxes (property taxes shall be based on the restricted value of low- and moderate-income units) and condominium or homeowner fees do not exceed 28% of the eligible gross monthly income. Master deeds of inclusionary developments shall regulate condominium or homeowner association fees or special assessments of low- and moderate-income purchasers at a specific percentage of those paid by market purchasers calculated as follows: square footage of the subject low- or moderate-income unit divided by the average square footage of market rate units within the planned residential development with the identical number of bedrooms.

Gross rents, including an allowance for utilities, shall be established so as not to exceed 30% of the gross monthly income of the appropriate household size referenced in Subsection D(1) above. Those tenant-paid utilities that are included in the utility allowance shall be so stated in the lease. The allowance for utilities shall be consistent with the utility allowance approved by HUD for use in New Jersey.

§ 255-27 Circulation, parking, utilities, planning and staging.

Low-income housing units shall be reserved for households with a gross household income less than or equal to 50% of the median income approved by the Council on Affordable Housing. Moderate-income housing units shall be reserved for households with a gross household income less than 80% of the median income approved by the Council on Affordable Housing. For example, a household earning 48% of median income may be placed in any low-income unit; however, a household earning 53% may not qualify for a low-income unit. A household earning 67% of median may be placed in any moderate-income housing unit. A household earning less than 50% of median may be placed in a moderate-income housing unit. Low- and moderate-income units shall not be offered to households that are not income-eligible without approval of the Council on Affordable Housing.

In any planned residential development and senior citizen housing development, all off-street parking and loading facilities shall comply with the provisions of Chapter 218, Subdivision of Land, of this Code.

Any such planned residential development and senior citizen housing development shall also comply with the following requirements with respect to streets, utilities, environmental standards and staging of development:

Streets.

The right-of-way and pavement widths of all internal streets, roads and vehicular traveled ways shall be determined by the Planning Board based upon sound planning and engineering standards in conformity with the estimated needs of the fully proposed development and the traffic to be generated thereby. They shall be adequate in size, loading and design to accommodate the maximum traffic, parking and loading needs and access for fire-fighting, police and other emergency vehicles.

All private residential roads and streets shall contain a minimum pavement width of 30 feet.

All streets and roads, whether dedicated or privately owned and maintained, or any combination thereof, shall comply with all Borough ordinances as well as the laws of the State of New Jersey with regard to construction and safety.

Where an Official Map or Master Plan, or both, have been adopted, the proposed street system shall conform to the proposals and conditions shown thereon except as may be modified by the Planning Board or governing body, as provided by law.

Utility improvements.

Every planned residential development and senior citizen housing development shall be serviced by a centralized water and sanitary sewer system as defined herein.

All utility improvements, including storm drainage systems, sanitary sewage collection and disposal, garbage collection and recycling, and water supply systems, shall be in accordance with standards and procedures as established by local, county and state regulations. Such improvements shall be subject to review and approval by the Borough Engineer and the Board of Health, as well as appropriate county and state agencies. Water supply facilities shall be subject to review and approval by the Borough Engineer and Fire Department.

Electric, gas and telephone service. Electric, gas and telephone service lines shall be installed by the developer in concert with the appropriate public utilities providing such service. All such utility lines shall be installed underground.

Street improvements. Monuments, street names, traffic control devices, shade trees, streetlights, sidewalks, curbs, fire hydrants and all aspects of street construction, as well as other improvements, shall comply with all applicable provisions of the Code of the Borough of Old Tappan and shall meet with the approval of the Borough Engineer.

Environmental standards. Any planned residential development and senior citizen housing development shall comply with all environmental standards as provided herein and all other provisions of the Code of the Borough of Old Tappan. Any new building or structure to be erected, any existing building or structure to be moved, enlarged, altered or added to and any land within such planned residential development and senior citizen housing development shall also comply with the following requirements:

There shall be no increase in the rate of runoff of any adjoining or nearby stream or watercourse. Zero percent increase in runoff shall be maintained for the site in consideration of a one-hundred-year storm.

All principal buildings shall be set back a minimum of 30 feet from the one-hundred-year flood line of any stream or watercourse. All stream and watercourse corridors within this thirty-foot distance shall remain in their natural state, except where necessary to provide utility easements or connecting roadways. The Planning Board shall, in addition, require the applicant to dedicate to the public an easement of not less than 10 feet along each side or edge of such body of water.

No portion of the sanitary sewer system servicing the development may be located within 100 feet of any groundwater source in any area of fractured bedrock.

No portion or feature of any planned residential development and senior citizen housing development shall impede any existing waterways or streams or substantially alter the hydrology of the area.

(e)

In any planned residential development and senior citizen housing development, no structure shall be permitted in any area of the development having a topographic slope of 15% or greater, after final grading.

(f)

Any application for a planned residential development as a conditional use shall include an environmental impact statement, in accordance with the standards and procedures established in Chapter 218, Subdivision of Land, of this Code.

Comprehensive plan. As part of any application for a planned residential development as a conditional use, the applicant shall submit a comprehensive plan for the development of all property under the applicant's ownership and control and as to which the proposed planned residential development is a part. Such comprehensive plan shall comply with all applicable provisions of Chapter 218, Subdivision of Land, and this chapter of the Code, and all other applicable county and state regulations.

Required construction of low- and moderate-income units. Upon approval by the Planning Board of a planned residential development and senior citizen housing development, an appropriate developer's agreement shall be entered into among the applicant, the Planning Board and the Borough, by which the applicant shall be required to construct the low- and moderate-income housing units proposed for the development, regardless of the sale or ownership of any or all of the marketplace residential units or rental housing units provided in senior citizen housing. This obligation shall be binding upon the applicant's heirs, successors and assigns.

Staging. As permitted by N.J.S.A. 40:55D-39c(6), any planned residential development may be developed in stages. No proposed sequence of stages submitted by the applicant shall be approved unless the Planning Board finds and determines as follows:

That each stage is substantially self-functioning and self-sustaining with regard to access, utility services, parking, open space and other similar physical features and that such stage can be separately occupied, operated and maintained upon completion of construction and development.

That each stage is properly related to every other segment of the planned residential development and to the community as a whole and to all necessary community services which are available or which may be needed to serve the development in the future.

That adequate protection will be provided to ensure the proper disposition of each stage through the use of maintenance and performance guarantees, covenants and other formal agreements.