[Added 4-25-2006 by Ord. No. 05-62; amended 9-22-2009 by Ord. No.
O-054-09; 5-22-2018 by Ord. No. O-18-025]
This article shall be known and may be referred to as the "Inclusionary
Zoning Ordinance of the Township of Montclair."
The following definitions shall apply to the interpretation
and construction of this article:
A fund established for the receipt and management of cash-in-lieu
contributions received by the Township in accordance with the provisions
of this article. The Affordable Housing Fund shall be utilized solely
for the rehabilitation, construction, acquisition and maintenance
of affordable housing and for the cost of administering programs consistent
with the purposes of this article.
A unit that is pledged to remain affordable in perpetuity
to eligible households (as defined below).
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
or the construction of any residential building within the Township,
including, without limitation, a planned unit development or approved
subdivision.
Any household whose total income does not exceed the designated percentage of the median income for households as determined in accordance with applicable state and federal regulations and guidelines, or which meets the criteria established for a municipal housing program pursuant to Montclair Code § 65-3.
Any person who seeks a permit or approval for the construction
of a development which includes one or more residential dwelling units.
A.
To ensure the sufficient use of land through compact forms of development
and to create realistic opportunities for the construction of affordable
housing, this article shall apply to all residential development located
in those zones which permit a minimum residential density of eight
units per acre, specifically the R-3, OR-3, R-4, OR-4, N-C, C-1 and
C-2 zones, and in any other zone where a particular development yields
eight units per acre.
B.
This article shall not apply to residential expansions, renovations,
replacement residences or other residential development that does
not result in a net increase in the number of dwelling units. Furthermore,
it shall not apply to developments containing four or fewer dwelling
units. All subdivision and site plan approvals of qualifying residential
developments in the aforementioned zones shall be conditioned upon
compliance with this article. Where a developer demolishes existing
dwelling units and builds new dwelling units on the same site, this
article shall apply only if the net number of dwelling units is five
or more. This article may be superseded in areas in need of redevelopment
or rehabilitation by a redevelopment plan duly adopted pursuant to
N.J.S.A. 40A:12A-1 et seq.
No certificate of occupancy will be issued for any housing unit,
whether market-rate or affordable, within the development unless the
following items have been completed and submitted to the Township:
A.
A description of the number of affordable units in the development,
the number of bedrooms per unit, the location of all affordable units,
and the projected sales prices or rents of each affordable unit.
B.
A deed restriction in a form approved by the Township Attorney executed
and recorded in the Essex County Registrar's office. For ownership
units, the deed restriction shall include a covenant in favor of the
Township limiting the initial sale and subsequent resale of affordable
units to eligible households. For rental units, the deed restriction
shall include a covenant limiting the rental of affordable units to
eligible households.
No person shall sell, lease or rent an affordable unit except
to eligible households.
A.
Any development containing five or more dwelling units is required
to include at least 20% or one in five of the total number of units
within the development as affordable units.
(1)
The following criteria apply:
(a)
At least half of the affordable units within each bedroom distribution
shall be low-income units, and the remainder may be moderate-income
units. If there is only one affordable unit in the development, it
must be a low-income unit.
(b)
Affordable developments that are not age-restricted shall be
structured in conjunction with realistic market demands such that:
[1]
The combined number of efficiency and one-bedroom units is no
greater than 20% of the affordable units.
[2]
At least 30% of the affordable units are two-bedroom units.
[3]
At least 20% of the affordable units are three-bedroom units.
[4]
The remainder may be allocated at the discretion of the developer.
(2)
For developments containing three affordable units, two shall
be two-bedroom units, and one shall be a three-bedroom unit. For developments
containing four affordable units, two shall be two-bedroom units,
and two shall be three-bedroom units. For developments containing
five affordable units, one shall be a one-bedroom unit, three shall
be two-bedroom units, and one shall be a three-bedroom unit.
B.
When the total number of units in the development divided by five results in a fraction, the developer shall provide an additional affordable unit on-site, or an affordable unit off-site in a location approved by the Montclair Housing Commission, or a cash-in-lieu financial contribution to the Affordable Housing Trust Fund as set forth in § 347-161 to fulfill the fractional obligation. For example, if the total number of units in the development is eight, there would be an obligation to provide one affordable unit on-site and the obligation to provide an additional affordable unit on-site or off-site or a cash-in-lieu payment for the fractional obligation.
[Amended 6-1-2021 by Ord. No. O-21-09]
Affordable units provided on-site shall be reasonably dispersed
throughout the development and shall be designed and constructed to
be substantially similar in size and quality as on-site market units
unless specifically permitted otherwise by the approving Board. All
affordable units shall comply with applicable rules and guidelines
pertaining to the phasing, integration, low-/moderate- income split,
controls on affordability, bedroom distribution, affirmative marketing,
heating source and administration of the affordable units, as set
forth in N.J.A.C. 5:94-4.4,[1] N.J.A.C. 5:80-26.1, or any other applicable rules or programs.
[1]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b, Chapter
94, Substantive Rules of the New Jersey Council on Affordable Housing
for the Period Beginning December 20, 2004, expired on 9-11-2016.
Affordable units shall be built in accordance with the following
schedule:
|
Percent of Market-Rate Units Completed
|
Minimum Percentage of Low/Moderate-Income Units Completed
|
|---|---|
|
25%
|
0%
|
|
25% + 1 unit
|
10%
|
|
50%
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
The first floor of all townhouse dwelling units and other multistory
dwelling units shall comply with N.J.A.C. 5:97-3.14.
If a developer is permitted to meet its obligations under this
article by providing affordable units off-site, the developer may
join with others to provide the units in the same ward as the development
or at a reasonably comparable location (to be determined by the Montclair
Housing Commission). Off-site affordable units shall be substantially
similar in size and quality to on-site affordable units that otherwise
would be required under this article.
[Amended 6-1-2021 by Ord. No. O-21-09]
Whenever this article permits a cash-in-lieu contribution, the
contribution shall be calculated based on the amount of the subsidy
necessary to make one housing unit affordable for municipalities in
Montclair's region. The Township Council determines the required subsidy
is $197,391 (as of 2021). The subsidy amount may be revised periodically
by the Township Council.
Each developer shall adhere to the following provisions with
respect to the initial offering of affordable units for sale:
A.
Township notification. The developer shall notify the Township Department
of Planning and Community Development of the prospective availability
of any affordable units at the time a building permit is issued for
such units.
B.
Option. Upon receipt of the aforesaid notification, the Township
shall have an exclusive option for 60 days to agree to purchase each
affordable unit offered for sale by the developer unless waived or
assigned.
C.
Waiver. If the Township fails to exercise its option to purchase
or fails to negotiate and sign a purchase and sale agreement for the
affordable units, or if the Township declares its intent not to exercise
its option, the developer shall offer the units for purchase or rent
to eligible households consistent with the Township's Affirmative
Marketing Plan. If requested by the developer, the Township shall
execute documents that may be recorded to evidence its waiver of the
purchase option.
D.
Time of closing. The closing on affordable units purchased by the
Township shall occur on the later of a permanent certificate of occupancy
or within 60 days of the Township's exercise of its right of first
refusal. If the Township fails to close on the affordable units within
the time set forth herein, the developer shall offer the units for
purchase or rent to eligible households consistent with the Township's
Affirmative Marketing Plan.
E.
Transfer of option. The Township may assign its option under this
section to any not-for-profit corporation, in which event it shall
notify the developer of the name of the assignee, and thereafter the
assignee shall deal directly with the developer and shall have all
of the rights of the Township as provided under this section.
A purchaser of an affordable unit shall occupy the purchased
unit as his or her primary residence.
All ownership affordable units developed under this article
shall be subject to the following resale restrictions:
A.
Approved purchasers for resale of permanently affordable units. All
purchasers of affordable units shall be eligible households. A seller
of a permanently affordable unit must select an eligible household
purchaser by a method that complies with the marketing and selection
process approved by the Department of Planning and Community Development
or any other applicable rules, guidelines, or programs.
B.
Resale price for affordable units. The resale price of any affordable
unit shall be determined in accordance with N.J.A.C. 5:80-26.6 or
any other applicable rules, guidelines, or programs.
All affordable units shall be subject to the following requirements
to ensure the continued affordability of affordable units provided
under this article:
A.
Rent increases. Rent increases for affordable units shall be determined
in accordance with N.J.A.C. 5:80-26.12 or any other applicable rules,
guidelines, or programs.
To the extent the Department of Planning and Community Development
deems necessary, rules pertaining to this article will be developed,
maintained and enforced in order to implement the goals and objectives
of this article.
A.
At the conclusion of each calendar year, the Department of Planning
and Community Development will present sufficient information to the
Township Council so that it can effectively review the operation of
this article and determine whether any of the provisions of this article
should be amended, modified or deleted.
B.
Such information should be sufficient to enable the Township Council
to fairly evaluate the following:
(1)
The effectiveness of this article in contributing to the goals
and objectives sought to be advanced by the article;
(2)
Any demographic trends affecting housing affordability which
indicate the need for amendments or modifications to this article;
and
(3)
The level of integration of the provisions of this article with
other tools utilized by the Township as part of a comprehensive approach
toward attaining the goals of this article.
If any provision of this article is determined to be invalid
by a court of competent jurisdiction, then such provisions shall be
severed, and the remaining provisions of this article shall continue
to be valid.
