[Added 5-8-2001 by Ord. No. 01-15; amended
11-25-2008 by Ord. No. 08-22; 8-14-2018 by Ord. No.
18-19]
This §
215-102 et seq. establishes standards for the collection, maintenance, and expenditure of development fees that are consistent with COAH's regulations developed in response to P.L. 2008, c. 46, Sections 8 and 32-38 (C. 52:27D-329.2) and the Statewide Nonresidential Development Fee Act (C. 40:55D-8.1 through 8.7). Fees collected pursuant to this §
215-102 et seq. shall be used for the sole purpose of providing very-low- and moderate-income housing in accordance with a Court-approved spending plan.
The following terms, as used in this §
215-102 et seq., 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 100% affordable housing development.
COAH or the COUNCIL
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
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 authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27d-301
et seq., and regulated by applicable COAH Rules.
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 Sections 1,
5, and 6 of P.L. 1973, c. 123 (C.54:1-35a through C.54:1-35c).
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.
The Township of Ewing shall provide annual reporting of Affordable
Housing Trust Fund activity to the State of New Jersey, Department
of Community Affairs, Council on Affordable Housing or Local Government
Services or other entity designated by the State of New Jersey, with
a copy provided to Fair Share Housing Center and posted on the municipal
website, using forms developed for this purpose by the New Jersey
Department of Community Affairs, Council on Affordable Housing or
Local Government Services. The reporting shall include an accounting
of all Affordable Housing Trust Fund activity, including the sources
and amounts of funds collected and the amounts and purposes for which
any funds have been expended. Such reporting shall include an accounting
of development fees collected from residential and nonresidential
developers, payments in lieu of constructing affordable units on site
(if permitted by Ordinance or by Agreement with the Township), funds
from the sale of units with extinguished controls, barrier-free escrow
funds, rental income from Township-owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Ewing's affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the spending plan approved by the Court.
[Added 6-27-2006
by Ord. No. 06-24]
A. Purpose and findings. The purpose of this section
is to facilitate the provision of affordable housing in connection
with residential and nonresidential development in compliance with
the New Jersey Council on Affordable Housing Round Three Rules approved
December 20, 2004. This section is based on the following findings
of the Township Council:
(1)
The New Jersey Supreme Court and New Jersey
Legislature have recognized in South Burlington County NAACP v. Mount
Laurel, 92 N.J. 158 (1983) ("Mount Laurel II") and the Fair Housing
Act, N.J.S.A. 52:27D-301 et seq., ("FHA") that New Jersey municipalities
have responsibilities concerning the need to provide affordable housing
for low- and moderate-income households;
(2)
The Legislature conferred upon the New Jersey
Council on Affordable Housing (COAH) "primary jurisdiction for the
administration of housing obligations in accordance with sound regional
planning considerations in this state." [N.J.S.A. 52:27D-304(a)];
(3)
In Mount Laurel II, the New Jersey Supreme Court
ruled that municipalities had the power to address the Mount Laurel
responsibilities that the Court had created through "inclusionary
devices" and rejected the notion "that inclusionary measures amount
to a taking without compensation" (see Mount Laurel II at 271);
(4)
In Mount Laurel II, the Supreme Court also stated,
"[z]oning does not require that land be used for maximum profitability
and, on occasion, the goals may require something less" (see Mount
Laurel II at 274 n. 34);
(5)
In the case entitled Holmdel Builders Association
v. Township of Holmdel, 121 N.J. 550, 582 (1990), the Supreme Court
referred to its Mount Laurel II decision and emphasized that in designing
inclusionary ordinances, "no density bonuses, compensatory benefits,
or subsidies were specifically required;"
(6)
In view of the principles established by the
Supreme Court in these landmark decisions, COAH recently adopted substantive
regulations that authorized municipalities to impose a set-aside,
without any density bonuses or other compensatory benefits, pursuant
to which municipalities could require residential developers to construct
one affordable residential unit for every eight market residential
units the developer constructed [N.J.A.C. 5:94-4.4(a)];
(7)
COAH specifically stated that "a municipality
may adopt a zoning ordinance requiring a maximum of one for every
eight market-rate residential units be affordable to low- and moderate-income
households, as long as the zoning has not allowed an increase in density
to accommodate affordable housing." (36 N.J.R. 5775);
(8)
COAH has also authorized municipalities to require
nonresidential developers to produce affordable housing without any
enhancement or compensatory offsetting benefit based upon a formula
that would require the production of one affordable residential unit
for every 25 jobs projected to be created by the nonresidential development
[N.J.A.C. 5:94-4.4(a)];
(9)
The Township of Ewing wishes to ensure that,
as developers build residential and nonresidential projects, they
provide affordable housing consistent with COAH's regulations and
policies described above, policies soundly rooted in Supreme Court
precedent; and
(10)
Implementation of these policies will ensure
that as the Township grows with housing affordable to the middle and
upper class, it will also grow with housing affordable to lower-income
households, and that as nonresidential development occurs, it will
also provide housing affordable for lower-income workers. (See Mount
Laurel II at 211.)
B. Applicability.
(1)
This subsection of the Township of Ewing's affordable
housing regulations sets forth mechanisms by which developers shall
provide for a fair share of affordable housing based on growth that
is associated with development taking place within the Township.
(2)
Residential development. Except as exempted in Subsection
C, residential projects with nine or more units are subject to the "growth share" provisions of this section and must provide one affordable housing unit on site for every eight market-rate units. Any residential project with fewer than nine units is subject to the Township's development fees as set forth in the Development Fee Ordinance, §
215-102, including those residential projects with fewer than nine units receiving an increase in residential density for which developers will be required to pay a bonus development fee of 6% of the equalized assessed value for residential development rather than the development fee of 1%.
[Amended 12-19-2006
by Ord. No. 06-36]
(3)
Nonresidential development. All nonresidential development in any zone that results in an increase in gross floor area of any existing nonresidential structure or the construction of a new nonresidential structure shall be subject to the Township's development fees as set forth in this §
215-102.
[Amended 12-19-2006
by Ord. No. 06-36]
C. Exemptions.
(1)
Developments that received preliminary or final approval from the Planning Board and/or Board of Adjustment, as applicable, prior to the effective date of this §
215-102.
(2)
Nonprofit organizations which have received
tax-exempt status pursuant to Section 501(c)(3) of the Internal Revenue
Code, providing that current evidence of that status is submitted
to the Municipal Clerk together with a certification that services
of the organization are provided at reduced rates to those who establish
an inability to pay existing charges.
(3)
Federal, state, county and local governments.
(4)
Public utilities under the jurisdiction of the
New Jersey Board of Public Utilities to the extent that the construction
for which approval is sought is of a facility which shall house equipment
only and not to be occupied by any employees.
(5)
In the case of single-family development, any
new residential construction which has been created as part of an
on-site residential demolition permit shall not be counted towards
the Borough's growth share obligation and is exempt from development
fees.
[Added 12-19-2006
by Ord. No. 06-36]
D. Residential growth share provisions.
(1)
Quantification of affordable housing obligation for residential developers. Except as otherwise provided below, in those circumstances where an applicant seeks to develop land for residential purposes with projects of nine or more units, and receives no right to increased density or other compensatory bonus, said applicant shall produce and develop on site one residential unit of housing affordable to low- and moderate-income households for every eight market-rate residential units constructed (11.11%). Any residential project with fewer than nine units is subject to the Township's development fees as set forth in this §
215-102.
[Amended 12-19-2006
by Ord. No. 06-36]
(2)
Permissible manner of satisfaction of affordable
housing obligation of residential developers.
(a)
Residential development. For all residential
development with nine or more units, an applicant shall satisfy its
affordable housing production obligation through on-site housing production
in connection with the residential project, which is one of the mechanisms
permitted pursuant to COAH's regulations. By way of example, if a
developer secures approval for a nine-unit project, one of the units
must be reserved as an affordable unit.
[Amended 12-19-2006
by Ord. No. 06-36]
(b)
The other alternative mechanisms permitted under
COAH's regulations include the purchase of an existing market-rate
home at another location in the community and its conversion to an
affordable price-restricted home in accordance with COAH's criteria,
regulations and policies or participation in gut reconstruction and/or
buy-down/write-down, buy-down/rent-down programs. An applicant shall
only be entitled to satisfy its affordable housing obligation via
one or more of the alternative mechanisms set forth above if the applicant
first secures the written authorization of the Township Planning Board
to comply via one or more of these alternative mechanisms.
(c)
Before the applicant's development application
for final site plan or subdivision approval is deemed complete consistent
with the Municipal Land Use Law and this chapter, the applicant must
secure written permission from the Township Planning Board as to the
exact manner in which alternative mechanism(s) will be used to achieve
the creation of one affordable residential unit for every eight market-rate
residential units.
(d)
Full and complete satisfaction of compliance
with the affordable housing requirements of the development shall
be a specific, automatic, essential and nonseverable condition of
all land use approvals. Pursuant to this condition, the applicant
must demonstrate that it has satisfied the Planning or Zoning Board
condition of approval for affordable housing prior to obtaining the
first building permit, and compliance with the affordable housing
condition shall be a continuing condition of all Planning or Zoning
Board approvals for development.
E. Nonresidential growth-share provisions.
[Amended 12-19-2006
by Ord. No. 06-36]
(1)
Quantification of affordable housing obligation for nonresidential developers. Except as otherwise provided below, in those circumstances where an applicant seeks to develop land for nonresidential purposes and receives no right to an increased floor area ratio (FAR), as defined in §
215-8, Definitions, or other compensatory benefit, the developer shall adhere to the Township's development fees in this §
215-102 and must make a payment to the Township's Mount Laurel Trust Fund at a rate of 2% of the equalized assessed value for the project.
(2)
Full and complete satisfaction of compliance
with the affordable housing requirements of the development shall
be a specific, automatic, essential and nonseverable condition of
all approvals. Pursuant to this condition, the applicant must demonstrate
that it has satisfied the Planning or Zoning Board's affordable housing
condition of approval prior to obtaining the first building permit,
and compliance with the affordable housing condition shall be a continuing
condition of all approvals for development.
F. Mixed-use growth-share provisions.
[Amended 12-19-2006
by Ord. No. 06-36]
(1)
For all projects which include a combination of both residential and nonresidential development, the affordable housing obligation created by the residential portion of the project is set forth in Subsection
D(1) above.
(2)
The affordable housing obligation created by the nonresidential portion of the project is set forth in Subsection
E(1) above.
G. General provisions for constructing affordable units.
(1)
The affordable unit(s) to be produced pursuant to Subsections
A through
F above shall be available to a low-income individual or household should only one affordable unit be required. Thereafter, each of the affordable units shall be divided evenly between low- and moderate-income individuals and households except in the event the applicable formulas result in an odd number of affordable units; in which event the unit shall be a low-income residential unit.
[Amended 12-19-2006
by Ord. No. 06-36]
(2)
Affordable housing units being constructed on
site or off site shall meet the requirements of the Township of Ewing's
Affordable Housing Ordinance and shall be in conformance with COAH's
third round rules at N.J.A.C. 5:94-1 et seq., and the Uniform Housing
Affordability Controls at N.J.A.C. 5:80-26.1 et seq., including, but
not limited to, requirements regarding phasing schedule, controls
on affordability, low/moderate income split, heating source, maximum
rent and/or sales prices, affordability average, bedroom distribution,
and affirmative marketing.
(3)
It shall be the applicant's responsibility,
at its sole cost and expense, to arrange for a COAH- and Township-approved
qualification service to ensure full COAH compliance and to file such
certifications, reports and/or monitoring forms as may be required
by COAH to verify COAH compliance of each affordable unit.
(4)
To the greatest extent possible, affordable
housing units being provided within inclusionary developments shall
be disbursed throughout inclusionary developments and shall be located
within buildings designed to be architecturally indistinguishable
from the market-rate units otherwise being constructed within the
development. To that end, the scale, massing, roof pitch and architectural
detailing (such as the selection of exterior materials, doors, windows,
etc.) of the buildings containing the affordable housing units shall
be similar to and compatible with that of the market-rate units.
(5)
Affordable housing deed restrictions, pricing
and bedroom distributions must be in accordance with Uniform Housing
Affordability Controls ("UHAC") as set forth in N.J.A.C. 5:80-26.1
et seq.
[Amended 12-19-2006
by Ord. No. 06-36]
H. Permissible manner of satisfaction of affordable housing obligation of mixed-use developers. For all projects which include a combination of both residential and nonresidential development, the affordable housing obligation created by the residential portion of the project is set forth in Subsection
D above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection
D above. The affordable housing obligation created by the nonresidential portion of the project is set forth in Subsection
E above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection
E above.
I. Right to greater set-aside if compensatory benefit.
(1)
As to residential developers, nothing herein
shall affect the Township's ability to generate more affordable housing
than the one-for-eight standard set forth above in the event that
the developer secures a density bonus or other compensatory benefit
through zoning or through a use variance.
(2)
As to nonresidential developers, nothing herein shall affect the Township's ability to generate an increased fee in accordance with the Township's Development Fee Ordinance, §
215-102, in the event that the developer does not secure an increased floor area ratio (FAR) or other compensatory benefit through zoning or through a use variance.
[Amended 12-19-2006
by Ord. No. 06-36]
(3)
Any requirement for residential or nonresidential developers in excess of the ratios referenced in Subsection
G(1) and
(2) above shall be based upon standards the Township shall hereafter enact and shall secure COAH's approval of same.