[Added 7-6-2009 by Ord. No. 2009-07[1]]
A.
This article is intended to assure that very-low-, low-, and moderate-income
units ("affordable units") are created with controls on affordability
over time and that very-low-, low-, and moderate-income households
shall occupy these units. This article shall apply except where inconsistent
with applicable law.
B.
The Lower Township Planning Board has adopted a Housing Element and
Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A.
40:55D-1 et seq. The Fair Share Plan has been endorsed by the Mayor
and Council. The Fair Share Plan describes the ways Lower Township
shall address its fair share for very-low-, low, and moderate-income
housing as determined by the Council on Affordable Housing (COAH)
and documented in the Housing Element.
C.
This article implements and incorporates the Fair Share Plan and
addresses the requirements of N.J.A.C. 5:97, COAH Substantive Rules,
as may be amended and supplemented.
D.
This article provides for the collection of affordable housing fees
on residential and nonresidential development.
E.
This article provides for affirmative marketing controls in accordance
with COAH's Round 3 Rules, N.J.A.C. 5:97 et seq.
F.
Lower Township shall file monitoring reports with COAH in accordance
with N.J.A.C. 5:96, COAH Procedural Rules, tracking the status of
the implementation of the Housing Element and Fair Share Plan. Any
plan evaluation report of the Housing Element and Fair Share Plan
and monitoring prepared by COAH in accordance with N.J.A.C. 5:96 shall
be available to the public at the Lower Town Hall, Municipal Clerk's
Office, 2600 Bayshore Road, Villas, New Jersey, from COAH at 101 South
Broad Street, Trenton, New Jersey, and on COAH's website at www.nj.gov/dca/affiliates/coah.
The following terms, when used in this article shall have the
following meanings:
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity responsible for the administration of affordable
units in accordance with this article, COAH Rules at N.J.A.C. 5:96,
N.J.A.C. 5:97 and the Uniform Housing Affordability Controls (UHAC)
at N.J.A.C. 5:80-26.
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
A sales price or rent level that is within the means of a
very-low-, low, or moderate-income household as defined in N.J.A.C.
5:97-9 and, in the case of an ownership unit, that the sales price
for the unit conforms to the standards set forth in N.J.A.C. 5:80-26.6,
as may be amended and supplemented, and, in the case of a rental unit,
that the rent for the unit conforms to the standards set forth in
N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A housing development all or a portion of which consists
of restricted units.
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a one-hundred-percent affordable
housing development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act, credited
pursuant to N.J.A.C. 5:97-4, and/or funded through an affordable housing
trust fund.
The average percentage of median income at which new restricted
units in an affordable housing development are affordable to very-low-,
low, and moderate-income households.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development where the unit is situated
are 62 years of age or older; or
At least 80% of the units are occupied by one person who is
55 years of age or older; or
The development has been designated by the Secretary of the
U.S. Department of Housing and Urban Development as "housing for older
persons" as defined in Section 807(b)(2) of the Fair Housing Act,
42 U.S.C. § 3607.
A facility that is licensed by the New Jersey Department
of Health and Senior Services to provide apartment-style housing and
congregate dining and to assure that assisted living services are
available when needed for four or more adult persons unrelated to
the proprietor and that offers units containing, at a minimum, one
unfurnished room, a private bathroom, a kitchenette and a lockable
door on the unit entrance.
A household that has been certified by an administrative
agent as a low-income household or moderate-income household.
The Council on Affordable Housing, which is in, but not of,
the Department of Community Affairs of the State of New Jersey, as
established by the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301
et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
require the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development, including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A development containing both affordable units and market-rate
units. This term includes, but is not limited to, new construction,
the conversion of a nonresidential structure to residential use and
the creation of new affordable units through the reconstruction of
a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the median household income.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building which
include, but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement or load-bearing structural systems.
Housing not restricted to very-low-, low-, and moderate-income
households that may sell or rent at any price.
The median income by household size for the applicable housing
region, as adopted annually by COAH.
A household with a total gross annual household income in
excess of 50% but less than 80% of the median household income.
A restricted unit that is affordable to a moderate-income
household.
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class A
beneficiary and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by COAH's adopted regional income limits published annually
by COAH.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
A dwelling unit, whether a rental unit or an ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26 et seq.
A household with a total gross annual household income equal
to 30% or less of the median household income for the applicable housing
region.
A restricted unit that is affordable to a very-low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for purposes of the rehabilitation
program.
The Township of Lower has determined that it will use the following
mechanisms to satisfy its affordable housing obligations:
A.
Market to affordable program.
(1)
A market to affordable program is established to permit the purchase or subsidization of units through a written agreement with the property owner and sold or rented to very-low-, low-, and moderate-income households. Subject to the provisions of Subsections A(2)(c) below, the market to affordable programs may produce very-low-, low, and moderate-income units.
(2)
The following provisions shall apply to market to affordable programs:
(a)
At the time they are offered for sale or rental, eligible units
may be new, pre-owned or vacant.
(b)
The units shall be certified to be in sound condition as a result
of an inspection performed by a licensed building inspector.
(c)
Lower Township will provide a minimum of $25,000 per unit to
subsidize each moderate-income unit and/or $30,000 per unit to subsidize
the each low-income unit.
(d)
The maximum number of creditable market to affordable units
shall be equal to no more than 10 for-sale units and 10 rental units
or a combined total of 10% of the fair share obligation, whichever
is greater. (Additional units may be approved by COAH if the municipality
demonstrates the successful completion of its initial market to affordable
program.)
(3)
The units shall comply with N.J.A.C. 5:97-9 and UHAC (N.J.A.C. 5:80-26)
with the following exceptions:
(a)
Bedroom distribution [N.J.A.C. 5:80-26.3(b) and (c)];
(b)
Very-low/low-/moderate-income split (N.J.S.A. 52:27D-329.1 and
N.J.A.C. 5:80-26.3(a)]; and
(c)
Affordability average [N.J.A.C. 5:80-26.3(d) and (e)]; however:
[1]
The maximum rent for a moderate-income unit shall be affordable
to households earning no more than 60% of median income, and the maximum
rent for a low-income unit shall be affordable to households earning
no more than 44% of median income, and the maximum rent for a very-low-income
unit shall be affordable to households earning no more than 30% of
the median household income; and
[2]
The maximum sales price for a moderate-income unit shall be
affordable to households earning no more than 70% of median income,
and the maximum sales price for a low-income unit shall be affordable
to households earning no more than 40% of median income, and the maximum
sales price for a very-low-income unit shall be affordable to households
earning no more than 30% of median income.
A.
Basic requirements.
(1)
The Township of Lower shall not impose development fees on any applicant
pursuant to this article until COAH or a court has approved the Development
Fee Ordinance pursuant to N.J.A.C. 5:96-5.1, except that residential
fees may be collected pursuant to the previously approved fee ordinance
until such time as this article takes effect, and nonresidential fees
shall be collected in accordance with the Statewide Nonresidential
Development Fee Act, N.J.S.A. 40:55D-8.1 et seq.
(2)
The Township of Lower shall not spend development fees until COAH
or a court has approved a plan for spending such fees in conformance
with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
B.
Residential development fees.
(1)
Imposed fees.
(a)
Within the Township of Lower zoning districts, residential developers,
except for developers of the types of development specifically exempted
below, shall pay a fee of 1.5% of the equalized assessed value for
residential development, provided no increased density is permitted.
(b)
When an increase in residential density pursuant to N.J.S.A.
40:55D-70d(5) (known as a "d" variance) has been permitted, developers
may be required to pay a development fee of 6% of the equalized assessed
value (EAV) for each additional unit above that permitted by right
that may be realized. However, if the zoning on a site has changed
during the two-year period preceding the filing of such a variance
application, the base density for the purposes of calculating the
bonus development fee shall be the highest density permitted by right
during the two-year period preceding the filing of the variance application.
(c)
Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal 1.5%
of the equalized assessed value on the first two units; and the specified
higher percentage up to 6% of the equalized assessed value for the
two additional units, provided zoning on the site has not changed
during the two-year period preceding the filing of such a variance
application.
(2)
Eligible exactions, ineligible exactions, and exemptions for residential
development.
(a)
Affordable housing developments and developments where the developer
has made a payment in lieu of on-site construction of affordable units
shall be exempt from development fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption of a municipal development fee ordinance
shall be exempt from development fees, unless the developer seeks
a substantial change in the approval. Where a site plan approval does
not apply, a zoning and/or building permit shall be synonymous with
preliminary or final site plan approval for this purpose. The fee
percentage shall be vested on the date that the building permit is
issued.
(c)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, or is expanded, if the expansion is not otherwise exempt
from the development fee requirement. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(d)
Nonprofit organizations which have received tax-exempt status
pursuant to Section 501(c)(3) of the Internal Revenue Code, providing
current evidence of that status is submitted to the Township 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, shall be exempted from paying a development fee.
(e)
Federal, state, county and local governments shall be exempted
from paying a development fee.
(f)
The owner of a residential unit who rebuilds when the owner's
existing dwelling unit was destroyed due to fire, flood or other natural
disaster shall be exempt from paying a development fee.
(g)
A residential construction permit which involves construction
costs of fifty thousand ($50,000.00) dollars or less shall be exempt
from paying a development fee.
C.
Nonresidential development fees.
(1)
Imposed fees.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of development specifically exempted,
shall pay a fee equal to 2.5% of the equalized assessed value of the
land and improvements, for all new nonresidential construction on
an unimproved lot or lots.
(b)
Nonresidential developers, except for developers of the types
of development specifically exempted, shall also pay a fee equal to
2.5% of the increase in equalized assessed value resulting from any
additions to existing structures to be used for nonresidential purposes.
(c)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and improvement and the equalized assessed
value of the newly-improved structure, i.e., land and improvement,
at the time a final certificate of occupancy is issued. If the calculation
required under this section results in a negative number, the nonresidential
development fee shall be zero.
(2)
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(a)
The nonresidential portion of a mixed-use inclusionary or market-rate
development shall be subject to the 2.5% development fee, unless otherwise
exempted below.
(b)
The fee of 2.5% shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within existing
footprint, reconstruction, renovations and repairs.
(c)
Nonresidential developments shall be exempt from payment of
nonresidential development fees in accordance with the exemptions
required pursuant to N.J.S.A. 40:55D-8.4b, as specified in Form N-RDF
State of New Jersey Nonresidential Development Certification/Exemption
Form. Any exemption claimed by a developer shall be substantiated
by that developer.
(d)
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to N.J.S.A. 40:55D-8.4b shall
be subject to it at such time as the basis for the exemption no longer
applies, and shall make the payment of the nonresidential development
fee, in that event, within three years after that event or after the
issuance of the final certificate of occupancy of the nonresidential
development, whichever is later.
(e)
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Township of Lower as a lien against the
real property of the owner.
D.
Collection procedure.
(1)
Upon the granting of a preliminary, final or other applicable approval,
for a development, the applicable approving authority shall direct
its staff to notify the Lower Township Construction Official responsible
for the issuance of a building permit.
(2)
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, State of New Jersey Nonresidential
Development Certification/Exemption, to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in Form N-RDF. The Tax Assessor shall
verify exemptions and prepare estimated and final assessments as per
the instructions provided in Form N-RDF.
(3)
The Construction Official responsible for the issuance of a building
permit shall notify the Tax Assessor of the issuance of the first
building permit for a development which is subject to a development
fee.
(4)
Within 90 days of receipt of that notice, the Tax Assessor, based
on the plans filed, shall provide an estimate of the equalized assessed
value of the development.
(5)
The Construction Official responsible for the issuance of a final
certificate of occupancy notifies the Tax Assessor of any and all
requests for the scheduling of a final inspection on property which
is subject to a development fee.
(6)
Within 10 business days of a request for the scheduling of a final
inspection, the Tax Assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development;
calculate the development fee; and thereafter notify the developer
of the amount of the fee.
(7)
Should the Township of Lower fail to determine or notify the developer
of the amount of the development fee within 10 business days of the
request for final inspection, the developer may estimate the amount
due and pay that estimated amount consistent with the dispute process
set forth in N.J.S.A. 40:55D-8.6b.
(8)
Fifty percent of the development fee shall be collected at the time
of issuance of the building permit. The remaining portion shall be
collected at the issuance of the certificate of occupancy. The developer
shall be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of the certificate
of occupancy.
(9)
Appeal of development fees.
(a)
A developer may challenge residential development fees imposed
by filing a challenge with the County Board of Taxation. Pending a
review and determination by the Board, collected fees shall be placed
in an interest-bearing escrow account by the Township of Lower. Appeals
from a determination of the Board may be made to the Tax Court in
accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
(b)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by the Township of
Lower. Appeals from a determination of the Director may be made to
the Tax Court in accordance with the provisions of the State Tax Uniform
Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the
date of such determination. Interest earned on amounts escrowed shall
be credited to the prevailing party.
E.
Affordable Housing Trust Fund.
(1)
There is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Lower Township Chief Financial
Officer for the purpose of depositing development fees collected from
residential and nonresidential developers and proceeds from the sale
of units with extinguished controls.
(2)
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(a)
Payments in lieu of on-site construction of affordable units;
(b)
Developer-contributed funds to make ten percent (10%) of the
affordable entrances in a townhouse or other multistory attached development
accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with the Township of
Lower's affordable housing program.
(3)
Within seven days from the opening of the Affordable Housing Trust
Fund account, the Township of Lower shall provide COAH with written
authorization, in the form of a three-party escrow agreement between
the Township of Lower, the Township's banking institution, and COAH
to permit COAH to direct the disbursement of the funds as provided
for in N.J.A.C. 5:97-8.13(b).
(4)
All interest accrued in the Affordable Housing Trust Fund shall only
be used on eligible affordable housing activities approved by COAH
or the court.
F.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved
by COAH or the Court. Funds deposited in the housing trust fund may
be used for any activity approved by COAH or the court to address
the Township of Lower's fair share obligation and may be set up as
a grant or revolving loan program. Such activities include, but are
not limited to, preservation or purchase of housing for the purpose
of maintaining or implementing affordability controls, rehabilitation,
new construction of affordable housing units and related costs, accessory
apartment, market to affordable, or regional housing partnership programs,
conversion of existing nonresidential buildings to create new affordable
units, green building strategies designed to be cost saving and in
accordance with accepted national or state standards, purchase of
land for affordable housing, improvement of land to be used for affordable
housing, extensions or improvements of roads and infrastructure to
affordable housing sites, financial assistance designed to increase
affordability, administration necessary for implementation of the
Housing Element and Fair Share Plan, or any other activity as permitted
pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved
spending plan.
(2)
Funds shall not be expended to reimburse the Township of Lower for
past housing activities.
(3)
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the Township Fair Share
Plan. One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
(a)
Affordability assistance programs may include downpayment assistance,
security deposit assistance, low-interest loans, rental assistance,
assistance with homeowners' association or condominium fees and special
assessments, and assistance with emergency repairs.
(b)
Affordability assistance to households earning 30% or less of
median income may include buying down the cost of low- or moderate-income
units in the Township Fair Share Plan to make them affordable to households
earning 30% or less of median income.
(c)
Payments in lieu of constructing affordable units on site and
funds from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
(4)
The Township of Lower may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including the requirement for affordability assistance, in accordance
with N.J.A.C. 5:96-18.
(5)
No more than 20% of all revenues collected from development fees
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or consultant fees necessary
to develop or implement a new construction program, a Housing Element
and Fair Share Plan, and/or an affirmative marketing program. In the
case of a rehabilitation program, no more than 20% of the revenues
collected from development fees shall be expended for such administrative
expenses. Administrative funds may be used for income qualification
of households, monitoring the turnover of sale and rental units, and
compliance with COAH's monitoring requirements. Legal or other fees
related to litigation opposing affordable housing sites or objecting
to the Council's regulations and/or action are not eligible uses of
the Affordable Housing Trust Fund.
G.
Monitoring. The Township of Lower shall complete and return to COAH
all monitoring forms included in the annual monitoring report related
to the collection of development fees from residential and nonresidential
developers, payments in lieu of constructing affordable units on site,
and funds from the sale of units with extinguished controls, barrier-free
escrow funds, rental income, repayments from affordable housing program
loans, and any other funds collected in connection with the Township
of Lower's housing program, as well as to the expenditure of revenues
and implementation of the plan approved by COAH or the court. All
monitoring reports shall be completed on forms designed by COAH.
H.
Ongoing collection of fees. The ability of the Township of Lower
to impose, collect and expend development fees shall expire with its
substantive certification or judgment of compliance unless the Township
of Lower has filed an adopted Housing Element and Fair Share Plan
with COAH, has petitioned COAH for substantive certification, or brought
a declaratory relief action in court pursuant to N.J.S.A. 52:27D-313
and has received approval of its development fee ordinance by COAH
or the court. If the Township of Lower fails to renew its ability
to impose and collect development fees prior to the expiration of
its substantive certification or judgment of compliance, it may be
subject to forfeiture of any or all funds remaining within its municipal
trust fund. Any funds so forfeited shall be deposited into the New
Jersey Affordable Housing Trust Fund established pursuant to N.J.S.A.
52:27D-320. The Township of Lower shall not impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its substantive certification or
judgment of compliance, nor shall the Township of Lower retroactively
impose a development fee on such a development. The Township of Lower
shall not expend development fees after the expiration of its substantive
certification or its judgment of compliance from a court.
A.
Applicability.
(1)
This section of the Lower Township Development 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 of Lower.
B.
Exemptions. Residential developments that received preliminary or
final approval from the Planning Board and/or Board of Adjustment,
as applicable, prior to the effective date of Ordinance 2009-07 (July
6, 2009) are hereby exempt from the Round 3 growth share provisions
of this article.
C.
Residential growth share provisions.
(1)
Residential development in the R-2 Single Family Residential and
R-3 Mainland Residential Zones in the Township of Lower which result
in the construction of five or more new market-rate dwelling units
shall be permitted a presumptive density increase of 40% over the
permitted density in the existing zoning with a presumptive maximum
affordable housing set-aside of 20% of the total number of units in
the development. For example:
|
Permitted Market Rate Units Under Existing Zoning
|
Additional Lots With Density Increase of 40%
(1)
|
Total Maximum Number of Lots
(1)
|
Twenty-Percent Affordable Set-Aside Requirement Based
on Total Maximum Number of Lots
| |
|---|---|---|---|---|
|
4
|
None
|
4
|
Payment of affordable housing development fee in accordance with § 400-91B(1)
| |
|
5
|
2
|
7
|
1.4 (2)
| |
|
10
|
4
|
14
|
2.8 (2)
| |
|
25
|
10
|
35
|
7.0
|
|
Notes:
| ||
|---|---|---|
|
(1)
|
If the forty-percent density increase lot calculation or the
total number of maximum lot calculation results in a fractional number,
that number can be rounded up to the nearest whole number at 0.5 or
greater and rounded down to the nearest whole number at 0.4 or less.
| |
|
(2)
|
Fractional affordable share: See § 400-92C(4).
| |
(2)
As an alternative to fulfilling the affordable housing requirement on-site set forth in § 400-92C(1), developers of residential units required to construct an affordable housing unit may elect to construct an affordable housing unit elsewhere in Lower or purchase an existing residential unit elsewhere in Lower which shall comply with applicable COAH Rules at N.J.A.C. 5:97-1 et seq. Under this alternative, if the required number of affordable lots is provided off-site, those affordable lots are to be deducted from the total maximum number of lots after the forty-percent density increase is applied.
(3)
The maximum number of residential building lots with an affordable housing density bonus increase in accordance with § 400-92C(1) shall first be computed on the basis of a lot yield plan of a standard subdivision in accordance with all provisions of Chapter 400 which includes delineated wetlands, wetlands buffers and floodplains. The number of conforming approvable lots in the conventional subdivision design shall then be counted and the development may be redesigned using the development regulations in § 400-92D.
(4)
For any inclusionary development of five or more housing units which
results in a fractional affordable share, the developer shall make
a payment in lieu of constructing the fractional affordable unit.
The fractional share amount shall be established by multiplying the
resulting fraction by the amount established in N.J.A.C. 5:97-6.4(c)3
for COAH Housing Region 6.
(5)
For all residential developments consisting of fewer than five residential units in Lower, the developer shall pay an affordable housing development fee in accordance with § 400-91B(1).
(6)
All residential developments not subject to the provisions of Subsection C (1) above or listed as an exemption in § 400-91B(2) shall be subject to the provisions of development fees as set forth in § 400-91, Development fees.
(7)
Residential growth share provisions shall apply to the resubdivision of land that in combination with a prior subdivision results in the creation of five or more lots. The cumulative number of lots created from the original tract of land shall be counted toward the growth share provisions upon any subsequent subdivision. The original tract of land shall be considered any tract or lot existing at the time of adopting this article (§ 400-92) by Ordinance 2009-07, July 6, 2009.
(8)
Inclusionary zoning developments shall be required to build affordable
housing units in accordance with the following schedule:
|
Percentage of Market Rate Units Completed
(including Bonus Units)
|
Minimum Percentage of Low- and Moderate-Income Units Completed
| |
|---|---|---|
|
25%
|
0
| |
|
25% + 1 unit
|
10%
| |
|
50%
|
50%
| |
|
75%
|
75%
| |
|
90%
|
100%
|
(9)
In determining the actual residential growth share obligation, the
following may be subtracted from the number of market-rate certificates
of occupancy issued:
(a)
Units included in the exclusions permitted by N.J.A.C. 5:97-2.4(a)1
that have been issued certificates of occupancy;
(b)
Certificates of occupancy issued for continuing care retirement
communities, dormitories, and hotels and motels classified as R1 or
R2 by the Uniform Construction Code (UCC);
(c)
Certificates of occupancy issued for farm labor housing constructed
on a commercial farm as defined by the Right to Farm Act, N.J.S.A.
4:1C-1 et seq., and classified as R2, R3, or R5 by the Uniform Construction
Code (UCC); and
(d)
Additional market-rate rental units in an inclusionary or mixed-use
development where the affordable housing units are rental units that
are addressing a municipality's growth share obligation.
D.
General provisions for constructing affordable units in inclusionary
developments.
(1)
Affordable housing units being constructed on-site or off-site shall meet the requirements of the Lower affordable housing regulations in §§ 400-93 through 400-108 and shall be in conformance with COAH's Third Round Rules at N.J.A.C. 5:97-1 et seq. and the Uniform Housing Affordability Controls at N.J.A.C. 5:80-26.1 et seq. as revised, including, but not limited to, requirements regarding phasing schedules, controls on affordability, very-low-/low-/moderate-income split, heating source, maximum rent and/or sales prices, affordability average, bedroom distribution, and affirmative marketing.
(2)
To the greatest extent possible, affordable housing units being provided
within an inclusionary development shall be distributed throughout
the inclusionary development and shall be located within buildings
designed to be architecturally similar to the market-rate units otherwise
being constructed within the development. To that end, architectural
detailing (such as the selection of exterior materials, doors, windows,
roof pitch, etc.) of the buildings containing the affordable housing
units shall be similar to and compatible with that of the market-rate
units.
(3)
For developments in which one affordable housing unit is required under this article, that unit shall be affordable to a low-income household and shall be in conformance with the affordable housing regulations in Subsection D(1) above.
(4)
Affordable housing units constructed off-site shall meet the zoning requirements established in Article IV, District Regulations.
(5)
Density bonus lots.
(a)
In developments where a density bonus lot is permitted per Subsection C(1), and affordable housing units are constructed on-site, the minimum lot size and lot frontage may be reduced as follows:
(b)
An example is as follows:
|
Zone
|
Required Minimum Lot Area
(square feet)
|
Reduced Minimum Lot Area
(square feet)
|
Required Minimum Lot Frontage
(feet)
|
Reduced Minimum Lot Frontage
(feet)
| |
|---|---|---|---|---|---|
|
R-2 - Affordable Lot
|
21,780
|
15,246
|
100
|
70
| |
|
R-2 - Market Rate and Bonus Lots
|
21,780
|
15,246
|
100
|
70
|
 |
E.
Payment-in-lieu provisions.
(1)
Any payment in lieu of construction of an affordable housing unit
shall be derived from calculations for payments in lieu of constructing
affordable housing as published in N.J.A.C. 5:97-6.4(c)3 for COAH
Region 6 as may be amended from time to time.
(2)
All payments in lieu of constructing affordable housing shall be deposited by Lower Township into the Round 3 Lower Township Affordable Housing Trust Fund in accordance with § 400-91E, Affordable Housing Trust Fund. These funds shall be used by Lower Township in accordance with regulations established by COAH to create new affordable housing opportunities within the physical boundaries of Lower Township.
In all zones that will contain both affordable housing and market-rate
housing units and/or market-rate nonresidential development, the following
schedule shall be followed:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percent of Very-low-, Low- and Moderate-Income
Units Completed
|
|---|---|
|
25%
|
0
|
|
25%+1
|
10%
|
|
50%
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
A.
Very-low-/low-/moderate-split and bedroom distribution of affordable
housing units:
(1)
The fair share obligation shall be divided between very-low-, low-,
moderate-income units as follows: very-low-, 13%; low-, 43.5%; moderate-,
43.5%. Where there is fractional number of affordable housing units,
the number shall be rounded up to the nearest whole number at 0.5
and rounded down to the nearest whole number at 0.5.
(2)
In each affordable development, at least 13% of the restricted units
within each bedroom distribution shall be very-low-income units.
(3)
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total very-low-, low, and moderate-income
units;
(b)
At least 30% of all very-low-, low, and moderate-income units
shall be two-bedroom units;
(c)
At least 20% of all very-low-, low, and moderate-income units
shall be three-bedroom units; and
(d)
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(4)
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
very-low-, low-, and moderate-income units within the inclusionary
development. This standard may be met by having all one-bedroom units
or by having a two-bedroom unit for each efficiency unit.
B.
Accessibility requirements.
(1)
The first floor of all restricted townhouse dwelling units and all
restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7 and N.J.A.C. 5:97-3.14.
(2)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
(a)
An adaptable toilet and bathing facility on the first floor;
(b)
An adaptable kitchen on the first floor;
(c)
An interior accessible route of travel on the first floor;
(d)
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
(f)
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7 and N.J.A.C. 5:97-3.14, or evidence that Lower Township has
collected funds from the developer sufficient to make 10% of the adaptable
entrances in the development accessible:
[1]
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]
To this end, the builder of restricted units shall deposit funds within the appropriate Township of Lower's Affordable Housing Trust Fund (§ 400-91E) sufficient to install accessible entrances in 10% of the affordable units that have been constructed with adaptable entrances.
[3]
The funds deposited under Subsection B(2)(f)[2] above shall be used by the Township of Lower for the sole purpose of making the adaptable entrance of an affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[4]
The developer of the restricted units shall submit a design
plan and cost estimate for the conversion of adaptable to accessible
entrances to the Construction Official of the Township of Lower.
[5]
Once the Construction Official has determined that the design plan to convert the unit entrances from adaptable to accessible meet the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7 and N.J.A.C. 5:97-3.14, and that the cost estimate of such conversion is reasonable, payment shall be made to the Township's Affordable Housing Trust Fund in care of the Township Treasurer, who shall ensure that the funds are deposited into the appropriate Affordable Housing Trust Fund (§ 400-91E) and appropriately earmarked.
[6]
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is "site impracticable" to
meet the requirements. Determinations of site impracticability shall
be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7 and
N.J.A.C. 5:97-3.14.
C.
Design.
(1)
In inclusionary developments, to the extent possible, very-low-,
low-, and moderate-income units shall be integrated with the market
units.
(2)
In inclusionary developments, very-low-, low, and moderate-income
units shall have access to all of the same common elements and facilities
as the market units.
D.
Maximum rents and sales prices.
(1)
In establishing rents and sales prices of affordable housing units,
the administrative agent shall follow the procedures set forth in
UHAC, utilizing the regional income limits established by COAH. The
maximum rent for a moderate-income unit shall be affordable to households
earning no more than 60% of median income, and the maximum rent for
a low-income unit shall be affordable to households earning no more
than 44% of median income, and the maximum rent for a very-low-income
unit shall be affordable to households earning no more than 30% of
the median household income.
(2)
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted low- and
moderate-income units shall be affordable to households earning no
more than 52% of median income and the maximum rent for a very-low-income
unit shall be affordable to households earning no more than 30% of
the median household income
(3)
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units, provided that at least 13% of all low-
and moderate-income rental units shall be affordable to very-low-income
households.
(4)
The maximum sales price of restricted ownership units within each
affordable development shall be affordable to households earning no
more than 70% of median income, and each affordable development must
achieve an affordability average of 55% for restricted ownership units;
in achieving this affordability average, moderate-income ownership
units must be available for at least three different sales prices
for each bedroom type, and low- and very-low- income ownership units
must be available for at least two different sales prices for each
bedroom type.
(5)
In determining the initial sales prices and rent levels for compliance
with the affordability average requirements for restricted units other
than assisted living facilities and age-restricted developments, the
following standards shall be used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half
person household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and-one-half
person household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
(6)
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units in
assisted living facilities and age-restricted developments, the following
standards shall be used:
(7)
The initial purchase price for all restricted ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowner and private mortgage insurance and condominium or homeowners'
association fees do not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4,
as may be amended and supplemented; provided, however, that the price
shall be subject to the affordability average requirement of N.J.A.C.
5:80-26.3, as may be amended and supplemented.
(8)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
size household, including an allowance for tenant-paid utilities,
as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented;
provided, however, that the rent shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(9)
The price of owner-occupied very-low-, low, and moderate-income units
may increase annually based on the percentage increase in the regional
median income limit for each housing region. In no event shall the
maximum resale price established by the administrative agent be lower
than the last recorded purchase price.
(10)
The rent of very-low-, low, and moderate-income units may be
increased annually based on the permitted percentage increase in the
Housing Consumer Price Index for the United States. This increase
shall not exceed 9% in any one year. Rents for units constructed pursuant
to low-income housing tax credit regulations shall be indexed pursuant
to the regulations governing low-income housing tax credits.
A.
Affordable units shall utilize the same type of heating source as
market units within an inclusionary development.
B.
Tenant-paid utilities included in the utility allowance shall be
set forth in the lease and shall be consistent with the utility allowance
approved by the New Jersey Department of Community Affairs for its
Section 8 program.
In referring certified households to specific restricted units,
the administrative agent shall, to the extent feasible and without
causing an undue delay in the occupancy of a unit, strive to:
A.
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this article for a period of at least 30 years, until lower takes
action to release the unit from such requirements; prior to such action,
a restricted ownership unit must remain subject to the requirements
of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
B.
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
C.
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the administrative agent shall determine
the restricted price for the unit and shall also determine the nonrestricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value without the restrictions in place.
D.
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the administrative agent a recapture
note obligating the purchaser (as well as the purchaser's heirs, successors
and assigns) to repay, upon the first nonexempt sale after the unit's
release from the restrictions set forth in this article, an amount
equal to the difference between the unit's nonrestricted fair market
value and its restricted price, and the recapture note shall be secured
by a recapture lien evidenced by a duly recorded mortgage on the unit.
E.
The affordability controls set forth in this article shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
F.
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all Code standards upon the first
transfer of title following the removal of the restrictions provided
under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
Price restrictions for restricted ownership units shall be in
accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
including:
A.
The initial purchase price for a restricted ownership unit shall
be approved by the administrative agent.
B.
The administrative agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
C.
The master deeds of inclusionary developments shall provide no distinction
between the condominium or homeowners' association fees and special
assessments paid by very-low-, low, and moderate-income purchasers
and those paid by market purchasers.
D.
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit on the basis
of anticipated capital improvements. Eligible capital improvements
shall be those that render the unit suitable for a larger household
or the addition of a bathroom.
A.
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that very-low-income ownership units shall be reserved for households
with a gross household income less than or equal to 30% of median
income or less, low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income, and moderate-income ownership units shall be reserved for
households with a gross household income less than 80% of median income.
B.
Notwithstanding the foregoing, however, the administrative agent
may, subject to COAH's approval, permit moderate-income purchasers
to buy low-income units in housing markets determined by COAH to have
an insufficient number of eligible low-income purchasers to permit
prompt occupancy of the units. All such low-income units to be sold
to moderate-income households shall retain the required pricing restrictions
for low-income units.
C.
A certified household that purchases a restricted ownership unit
must occupy it as the certified household's principal residence and
shall not lease the unit; provided, however, that the administrative
agent may permit the owner of a restricted ownership unit, upon application
and a showing of hardship, to lease the restricted unit to a certified
household for a period not to exceed one year.
D.
The administrative agent shall certify a household as eligible for
a restricted ownership unit when the household is a low-income household
or a moderate-income household, as applicable to the unit, and the
estimated monthly housing cost for the particular unit (including
principal, interest, taxes, homeowner and private mortgage insurance
and condominium or homeowners' association fees, as applicable) does
not exceed 33% of the household's eligible monthly income.
A.
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the owner shall apply to the administrative agent
for a determination in writing that the proposed indebtedness complies
with the provisions of this article, and the administrative agent
shall issue such determination prior to the owner incurring such indebtedness.
B.
With the exception of first purchase money mortgages, neither an
owner nor a lender shall at any time cause or permit the total indebtedness
secured by a restricted ownership unit to exceed 95% of the maximum
allowable resale price of the unit, as such price is determined by
the administrative agent in accordance with N.J.A.C. 5:80-26.6(b).
A.
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit on the basis
of capital improvements made since the purchase of the unit. Eligible
capital improvements shall be those that render the unit suitable
for a larger household or that add an additional bathroom. In no event
shall the maximum sales price of an improved housing unit exceed the
limits of affordability for the larger household.
B.
Upon the resale of a restricted ownership unit, all items of property
that are permanently affixed to the unit 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 may be sold to the purchaser
at a reasonable price that has been approved by the administrative
agent at the time of the signing of 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 the price, which shall be subject
to ten-year, straight-line depreciation, has been approved by the
administrative agent. Unless otherwise approved by the administrative
agent, 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 the time of or as a condition of resale.
A.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this article for a period of at least 30 years, until Lower takes
action to release the unit from such requirements. Prior to such action,
a restricted rental unit must remain subject to the requirements of
N.J.A.C. 5:80-26.1, as may be amended and supplemented.
B.
Deeds of all real property that include restricted rental units shall
contain deed restriction language. The deed restriction shall have
priority over all mortgages on the property, and the deed restriction
shall be filed by the developer or seller with the records office
of the County of Cape May. A copy of the filed document shall be provided
to the administrative agent within 30 days of the receipt of a certificate
of occupancy.
C.
A restricted rental unit shall remain subject to the affordability
controls of this article despite the occurrence of any of the following
events:
A.
A written lease shall be required for all restricted rental units,
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the administrative
agent.
B.
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the administrative agent.
C.
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the administrative agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this article.
A.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(1)
Very-low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of median
income.
(2)
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of median income.
(3)
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of median income.
B.
The administrative agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income household,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(1)
The household currently pays more than 35% (40% for households
eligible for age-restricted units) of its gross household income for
rent, and the proposed rent will reduce its housing costs;
(2)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(3)
The household is currently in substandard or overcrowded living
conditions;
(4)
The household documents the existence of assets with which the
household proposes to supplement the rent payments; or
(5)
The household documents proposed third-party assistance from
an outside source such as a family member in a form acceptable to
the administrative agent and the owner of the unit.
C.
The applicant shall file documentation sufficient to establish the
existence of the circumstances in B(1) through B(5) above with the
administrative agent, who shall counsel the household on budgeting.
A.
The Municipal Housing Liaison, a full- or part time municipal employee,
shall be responsible for administering the affordable housing program,
including affordability controls, the Affirmative Marketing Plan,
monitoring and reporting, and, where applicable, supervising any contracted
administrative agent. The Municipal Housing Liaison shall be approved
by COAH and shall be duly qualified before assuming the duties of
Municipal Housing Liaison.
B.
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for Lower, including
the following responsibilities which may not be contracted out to
the administrative agent or agents:
(1)
Serving as Lower Township's primary point of contact for all
inquiries from the state, affordable housing providers, administrative
agent(s) and interested households;
(2)
Monitoring the status of all restricted units in Lower Township's
Fair Share Plan;
(3)
Compiling, verifying and submitting annual monitoring reports
as required by COAH;
(4)
Coordinating meetings with affordable housing providers and
administrative agents, as needed; and
(5)
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by COAH.
C.
Subject to the approval of COAH, the Township of Lower shall designate
one or more administrative agent(s) to administer newly constructed
affordable units in accordance with N.J.A.C. 5:96, N.J.A.C. 5:97 and
UHAC. An operating manual shall be provided by the administrative
agent(s), to be adopted by resolution of the Mayor and Township Council
and subject to approval of COAH. The operating manuals shall be available
for public inspection in the Office of the Township Clerk and in the
office(s) of the administrative agent(s). The Municipal Housing Liaison
shall supervise the contracting administrative agent(s).
The administrative agent shall perform the duties and responsibilities
of an administrative agent as set forth in UHAC, including those set
forth in Sections 5:80-26.14, 16 and 18 thereof, which includes:
A.
Affirmative marketing:
(1)
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Affirmative Marketing Plan of
the Township of Lower and the provisions of N.J.A.C. 5:80-26.15; and
(2)
Providing counseling or contracting to provide counseling services
to very-low-, low, and moderate-income applicants on subjects such
as budgeting, credit issues, mortgage qualification, rental lease
requirements, and landlord/tenant law.
B.
Household certification:
(1)
Soliciting, scheduling, conducting and following up on interviews
with interested households;
(2)
Conducting interviews and obtaining sufficient documentation
of gross income and assets upon which to base a determination of income
eligibility for a very-low-, low, or moderate-income unit;
(3)
Providing written notification to each applicant as to the determination
of eligibility or noneligibility;
(4)
Requiring that all certified applicants for restricted units
execute a certificate substantially in the form, as applicable, of
either the ownership or rental certificates set forth in Appendices
J and K of N.J.A.C. 5:80-26.1 et seq.;
(5)
Creating and maintaining a referral list of eligible applicant
households living in the housing region and eligible applicant households
with members working in the housing region where the units are located;
and
(6)
Employing a random selection process as provided in the Affirmative
Marketing Plan of the Township of Lower when referring households
for certification to affordable units.
C.
Affordability controls:
(1)
Furnishing to attorneys or closing agents forms of deed restrictions
and mortgages for recording at the time of conveyance of title of
each restricted unit;
(2)
Creating and maintaining a file on each restricted unit for
its control period, including the recorded deed with restrictions,
recorded mortgage and note, as appropriate;
(3)
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Cape
May County Register of Deeds or Cape May County Clerk's office after
the termination of the affordability controls for each restricted
unit;
(4)
Communicating with lenders regarding foreclosures; and
(5)
Ensuring the issuance of continuing certificates of occupancy
or certifications pursuant to N.J.A.C. 5:80-26.10.
D.
Resales and rerentals:
(1)
Instituting and maintaining an effective means of communicating
information between owners and the administrative gent regarding the
availability of restricted units for resale or rerental; and
(2)
Instituting and maintaining an effective means of communicating
information to very-low-, low-, and moderate-income households regarding
the availability of restricted units for resale or rerental.
E.
Processing requests from unit owners:
(1)
Reviewing and approving requests for determination from owners
of restricted units who wish to take out home equity loans or refinance
during the term of their ownership that the amount of indebtedness
to be incurred will not violate the terms of this article;
(2)
Reviewing and approving requests to increase sales prices from
owners of restricted units who wish to make capital improvements to
the units that would affect the selling price, such authorizations
to be limited to those improvements resulting in additional bedrooms
or bathrooms and the depreciated cost of central air conditioning
systems;
(3)
Notifying the Township of Lower of an owner's intent to sell
a restricted unit; and
(4)
Making determinations on requests by owners of restricted units
for hardship waivers.
F.
Enforcement:
(1)
Securing annually from the Township a list of all affordable
housing units for which tax bills are mailed to absentee owners, and
notifying all such owners that they must either move back to their
unit or sell it;
(2)
Securing from all developers and sponsors of restricted units,
at the earliest point of contact in the processing of the project
or development, written acknowledgement of the requirement that no
restricted unit can be offered, or in any other way committed, to
any person, other than a household duly certified to the unit by the
administrative agent;
(3)
The posting annually in all rental properties, including two-family
homes, of a notice as to the maximum permitted rent, together with
the telephone number of the administrative agent where complaints
of excess rent or other charges can be made;
(4)
Sending annual mailings to all owners of affordable dwelling
units, reminding them of the notices and requirements outlined in
N.J.A.C. 5:80-26.18(d)4;
(5)
Establishing a program for diverting unlawful rent payments to the appropriate Lower Township Affordable Housing Trust Fund (§ 400-91E) or other appropriate municipal fund approved by the DCA; and
(6)
Creating and publishing a written operating manual, as approved
by COAH, setting forth procedures for administering the affordability
controls.
G.
Additional responsibilities:
(1)
The administrative agent shall have the authority to take all
actions necessary and appropriate to carry out its responsibilities
hereunder.
(2)
The administrative agent shall prepare monitoring reports for
submission to the Municipal Housing Liaison in time for their submission
by the Municipal Housing Liaison to COAH, as required by COAH.
(3)
The administrative agent shall attend continuing education sessions
on affordability controls, compliance monitoring, and affirmative
marketing as offered or approved by COAH.
A.
All affordable housing units shall be marketed in accordance with
the provisions herein unless otherwise provided in COAH's Rules at
N.J.A.C. 5:97-1 et seq.
B.
This Affirmative Marketing Plan shall apply to all developments that
will contain very-low-, low-, and moderate-income units, including
those that are part of the Township's current Housing Element and
Fair Share Plan and those that may be constructed in future developments
not yet anticipated by the Housing Element and Fair Share Plan.
C.
All of the costs of advertising and affirmatively marketing affordable
housing units shall be borne by the developer/seller/owner of the
affordable units.
D.
In implementing the Affirmative Marketing Plan, the Affordable Housing
Administrator, acting on behalf of the Township of Lower, shall undertake
all of the following strategies:
(1)
Publication of one advertisement in a newspaper of general circulation
within the housing region.
(2)
Broadcast of one advertisement by a radio or television station
broadcasting throughout the housing region.
(3)
At least one additional regional marketing strategy using one
of the other sources listed below.
E.
The Affirmative Marketing Plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to housing units which are being marketed
by a developer or sponsor of affordable housing. The Affirmative Marketing
Plan is also intended to target those potentially eligible persons
who are least likely to apply for affordable units in that region.
It is a continuing program that directs all marketing activities toward
the COAH Housing Region in which the Township is located and covers
the entire period of the deed restriction for each restricted housing
unit. The Township of Lower is in Housing Region 6 consisting of Atlantic,
Cape May, Cumberland and Salem Counties.
F.
The Affirmative Marketing Plan is a continuing program and shall
meet the following requirements:
(1)
All newspaper articles, announcements and requests for applications
for very-low-, low-, and moderate-income units shall appear in the
Press of Atlantic City and Cape May Gazette.
(2)
The primary marketing shall take the form of at least one press
release and a paid display advertisement in the above newspapers once
a week for four consecutive weeks. Additional advertising and publicity
shall be on an "as needed" basis. The developer/owner shall disseminate
all public service announcements and pay for display advertisements.
The developer/owner shall provide proof of publication to the Township's
Affordable Housing Administrator. All press releases and advertisements
shall be approved in advance by the Township's Affordable Housing
Administrator.
(3)
The advertisement shall include a description of the:
(a)
Location of the units;
(b)
Direction to the units;
(c)
Range of prices for the units;
(d)
Size, as measured in bedrooms, of units;
(e)
Maximum income permitted to qualify for the units;
(f)
Location of applications;
(g)
Business hours when interested households may obtain an application;
and
(h)
Application fees.
(4)
Newspaper articles, announcements and information on where to
request applications for very-low-, low and moderate-income housing
shall appear at least once a week for four consecutive weeks in at
least three locally oriented weekly newspapers within the region,
one of which shall be circulated primarily in Cape May County and
the other two of which shall be circulated primarily outside of Cape
May County but within the housing region of Cape May, Atlantic, Cumberland
and Salem Counties.
(5)
The following regional cable television stations or regional
radio stations shall be used during the first month of advertising.
The developer must provide satisfactory proof of public dissemination:
G.
Applications and brochures.
(1)
Applications, brochures, signs and/or posters used as part of
the affirmative marketing program shall be available/posted in the
following locations:
(2)
Applications shall be mailed by the administrative agent to
prospective applicants upon request. Also, applications shall be available
at the developer's sales/rental office and shall be mailed to prospective
applicants upon request.
H.
The administrative officer will be charged with developing, maintaining
and updating a list of community contact persons and/or organizations
in Atlantic, Cape May, Cumberland and Salem 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, including major regional and local
employers and local houses of worship.
I.
Quarterly information.
(1)
Quarterly informational flyers and applications shall be sent
to each of the following agencies for publication in their journals
and for circulation among their members:
(2)
Quarterly informational circulars and applications shall be
sent to the administrators of each of the following agencies in the
Counties of Cape May, Atlantic, Cumberland and Salem:
J.
A random selection method to select occupants of very-low-, low-
and moderate-income housing will be used by the Affordable Housing
Administrator, in conformance with N.J.A.C. 5:80-26.16(l). The affirmative
marketing plan shall provide a regional preference for all households
that live and/or work in COAH Housing Region 6, comprised of Cape
May, Atlantic, Cumberland and Salem Counties.
K.
The Affordable Housing Administrator shall administer the Affirmative
Marketing Plan. The Affordable Housing Administrator has the responsibility
to income qualify very-low-, low, and moderate-income households;
to place income eligible households in very-low-, low- and moderate-income
units upon initial occupancy; to provide for the initial occupancy
of very-low-, low-, and moderate-income units with income qualified
households; to continue to qualify households for re-occupancy of
units as they become vacant during the period of affordability controls;
to assist with outreach to very-low-, low-, and moderate-income households;
and to enforce the terms of the deed restriction and mortgage loan
as per N.J.A.C 5:80-26-1 et seq.
L.
The Affordable Housing Administrator shall direct qualified very-low-,
low-, and moderate-income applicants to counseling services on subjects
such as budgeting, credit issues, mortgage qualifications, rental
lease requirements and landlord/tenant law and shall develop, maintain
and update a list of entities and lenders willing and able to perform
such services.
M.
All developers/owners of very-low-, low-, and moderate-income housing
units shall be required to undertake and pay the costs of the marketing
of the affordable units in their respective developments, subject
to the direction and supervision of the Affordable Housing Administrator.
N.
The Affirmative Marketing Plan shall commence at least 120 days before
the issuance of either a temporary or permanent certificate of occupancy.
The Affirmative Marketing Plan shall continue until all very-low-,
low-, and moderate-income housing units are initially occupied and
for as long as affordable units exist that remain deed restricted
and for which the occupancy or reoccupancy of units continues to be
necessary.
O.
The Affordable Housing Administrator shall provide the Affordable
Housing Liaison with the information required to comply with monitoring
and reporting requirements pursuant to N.J.A.C. 5:80-26-1 et seq.
A.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the Township
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, a requirement for household
recertification, acceleration of all sums due under a mortgage, recuperation
of any funds from a sale in violation of the regulations, injunctive
relief to prevent further violation of the regulations, entry on the
premises, and specific performance.
B.
After providing written notice of a violation to an owner, developer
or tenant of a very-low-, low-, or moderate-income unit and advising
the owner, developer or tenant of the penalties for such violations,
the Township may take the following action(s) against the owner, developer
or tenant for any violation that remains uncured for a period of 60
days after service of the written notice:
(1)
The Township may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation or violations of the regulations governing the
affordable housing unit. If the owner, developer or tenant is adjudged
by the court to have violated any provision of the regulations governing
affordable housing units, the owner, developer or tenant shall be
subject to one or more of the following penalties, at the discretion
of the court:
(a)
A fine of not more than $500 per day or imprisonment for a period
not to exceed 90 days, or both, provided that each and every day that
the violation continues or exists shall be considered a separate and
specific violation of these provisions and not a continuation of the
initial offense.
(b)
In the case of an owner who has rented a very-low-, low-, or moderate-income unit in violation of the regulations governing affordable housing units, payment into the appropriate Township of Lower Affordable Housing Trust Fund (§ 400-91E) of the gross amount of rent illegally collected.
(c)
In the case of an owner who has rented a very-low-, low-, or
moderate-income unit in violation of the regulations governing affordable
housing units, payment of an innocent tenant's reasonable relocation
costs, as determined by the court.
(2)
The Township may file a court action in the Superior Court seeking
a judgment that would result in the termination of the owner's equity
or other interest in the unit, in the nature of a mortgage foreclosure.
Any such judgment shall be enforceable as if the same were a judgment
of default of the first purchase money mortgage and shall constitute
a lien against the very-low-, low-, or moderate-income unit.
(a)
The judgment shall be enforceable, at the option of the Township,
by means of an execution sale by the Cape May County Sheriff, at which
time the very-low-, low, and moderate-income unit of the violating
owner shall be sold at a sale price which is not less than the amount
necessary to fully satisfy and pay off any first purchase money mortgage
and prior liens and the costs of the enforcement proceedings incurred
by the Township, including attorney's fees. The violating owner shall
have his right to possession terminated as well as his title conveyed
pursuant to the Sheriff's sale.
(b)
The proceeds of the Sheriff's sale shall first be applied to
satisfy the first purchase money mortgage lien and any prior liens
upon the very-low-, low, and moderate-income unit. The excess, if
any, shall be applied to reimburse the Township for any and all costs
and expenses incurred in connection with either the court action resulting
in the judgment of violation or the Sheriff's sale. In the event that
the proceeds from the Sheriff's sale are insufficient to reimburse
the Township in full as aforesaid, the violating owner shall be personally
responsible for the full extent of such deficiency, in addition to
any and all costs incurred by the Township in connection with collecting
such deficiency. In the event that a surplus remains after satisfying
all of the above, such surplus, if any, shall be placed in escrow
by the Township for the owner and shall be held in such escrow for
a maximum period of two years or until such earlier time as the owner
shall make a claim with the Township for such. Failure of the owner
to claim such balance within the two-year period shall automatically
result in a forfeiture of such balance to the Township. Any interest
accrued or earned on such balance while being held in escrow shall
belong to and shall be paid to the Township, whether such balance
shall be paid to the owner or forfeited to the Township.
(c)
Foreclosure by the Township due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the very-low-, low-, and moderate-income unit. Title shall
be conveyed to the purchaser at the Sheriff's sale, subject to the
restrictions and provisions of the regulations governing the affordable
housing unit. The owner determined to be in violation of the provisions
of this plan and from whom title and possession were taken by means
of the Sheriff's sale shall not be entitled to any right of redemption.
(d)
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the Township may acquire title to the very-low-, low-,
and moderate-income unit by satisfying the first purchase money mortgage
and any prior liens and crediting the violating owner with an amount
equal to the difference between the first purchase money mortgage
and any prior liens and costs of the enforcement proceedings, including
legal fees and the maximum resale price for which the very-low-, low,
and moderate-income unit could have been sold under the terms of the
regulations governing affordable housing units. This excess shall
be treated in the same manner as the excess which would have been
realized from an actual sale as previously described.
(e)
Failure of the very-low-, low-, and moderate-income unit to
be either sold at the Sheriff's sale or acquired by the Township shall
obligate the owner to accept an offer to purchase from any qualified
purchaser which may be referred to the owner by the Township, with
such offer to purchase being equal to the maximum resale price of
the very-low-, low-, and moderate-income unit as permitted by the
regulations governing affordable housing units.
(f)
The owner shall remain fully obligated, responsible and liable
for complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
Appeals from all decisions of an administrative agent appointed
pursuant to this article shall be filed in writing with the Executive
Director of COAH.
