[HISTORY: Adopted by the Township Council of the Township of Clark 9-18-2017 by Ord. No. 17-14.[1] Amendments noted where applicable.]
[1]
Editor’s Note: This ordinance also repealed former Ch. 66, Affordable Housing, adopted 5-15-2017 by Ord. No. 17-07.
A. 
This chapter is intended to assure that low- and moderate-income units ("affordable units") are created with controls on affordability over time and that low- and moderate-income households shall occupy these units. This chapter shall apply except where inconsistent with applicable law.
B. 
The Clark Township Planning Board has adopted a Housing Element and Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A. 40:5513-1 et seq. The Fair Share Plan has been endorsed by the governing body. The Fair Share Plan describes the ways Clark Township shall address its fair share for low- and moderate-income housing as determined by the Court and documented in the Housing Element.
C. 
This chapter implements and incorporates the Fair Share Plan and addresses the requirements of N.J.A.C. 5:93-1 et seq., as may be amended and supplemented.
D. 
Reporting; required action.
(1) 
On the first anniversary of the execution of this agreement, and every anniversary thereafter through the end of this agreement, Clark shall provide annual reporting of trust fund activity to the New Jersey Department of Community Affairs, Council on Affordable Housing, or Local Government Services, or other entity designated by the State of New Jersey. The reporting shall include an accounting of all housing trust fund activity, including the source and amount of funds collected and the amount and purpose for which any funds have been expended.
(2) 
On the first anniversary of the execution of this agreement, and every anniversary thereafter through the end of this agreement, the Township shall provide annual reporting of the status of all affordable housing activity within the municipality through posting on the municipal website with a copy of such posting provided to Fair Share Housing Center, using forms previously developed for this purpose by the Council on Affordable Housing or any other forms endorsed by the Special Master and FSHC.
(3) 
The Fair Housing Act includes two provisions regarding action to be taken by the Township during the ten-year period of protection provided in this agreement. The Township shall comply with those provisions as follows:
(a) 
For the midpoint realistic opportunity review due on July 1, 2020, as required pursuant to N.J.S.A. 52:27D-313, the Township shall post on its municipal website, with a copy provided to Fair Share Housing Center, a status report as to its implementation of its plan and an analysis of whether any unbuilt sites or unfulfilled mechanisms continue to present a realistic opportunity and whether any mechanisms to meet unmet need should be revised or supplemented. Such posting shall invite any interested party to submit comments to the municipality, with a copy to Fair Share Housing Center, regarding whether any sites no longer present a realistic opportunity and should be replaced and whether any mechanisms to meet unmet need should be revised or supplemented. Any interested party may by motion request a hearing before the court regarding these issues.
(b) 
For the review of very-low-income housing requirements required by N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary of this agreement, and every third year thereafter, the Township shall post on its municipal website, with a copy provided to Fair Share Housing Center, a status report as to its satisfaction of its very-low-income requirements, including the family very-low-income requirements referenced herein. Such posting shall invite any interested party to submit comments to the municipality and Fair Share Housing Center on the issue of whether the municipality has complied with its very-low-income housing obligation under the terms of this settlement.
E. 
The following terms, when used in this chapter, shall have the meanings given in this section:
ACCESSORY APARTMENT
A self-contained residential dwelling unit with a kitchen, sanitary facilities, sleeping quarters and a private entrance, which is created within an existing home, or through the conversion of an existing accessory structure on the same site, or by an addition to an existing home or accessory building, or by the construction of a new accessory structure on the same site.
ACT
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A. 52:27D-301 et seq.).
ADAPTABLE
Constructed in compliance with the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
ADMINISTRATIVE AGENT
The entity responsible for the administration of affordable units in accordance with this chapter, N.J.A.C. 5:93 and N.J.A.C. 5:80-26.1 et seq.
AFFIRMATIVE MARKETING
A regional marketing strategy designed to attract buyers and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
AFFORDABILITY AVERAGE
The average percentage of median income at which restricted units in an affordable housing development are affordable to low- and moderate-income households.
AFFORDABLE
A sales price or rent within the means of a low- or moderate-income household as defined in N.J.A.C. 5:93-7.4; 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.
AFFORDABLE DEVELOPMENT
A housing development all or a portion of which consists of restricted units.
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a one-hundred-percent affordable development.
AFFORDABLE HOUSING PROGRAM(S)
Any mechanism in a municipal Fair Share Plan prepared or implemented to address a municipality's fair share obligation.
AFFORDABLE UNIT
A housing unit proposed or created pursuant to the Act, and approved for crediting by the Court, and/or funded through an affordable housing trust fund.
AGE-RESTRICTED UNIT
A housing unit designed to meet the needs of, and exclusively for, the residents of an age-restricted segment of the population such that:
(1) 
All the residents of the development where the unit is situated are 62 years or older; or
(2) 
At least 80% of the units are occupied by one person that is 55 years or older; or
(3) 
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.
AGENCY
The New Jersey Housing and Mortgage Finance Agency established by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
ALTERNATIVE LIVING ARRANGEMENT
A structure in which households live in distinct bedrooms, yet share kitchen and plumbing facilities, central heat and common areas. Alternative living arrangement includes, but is not limited to: transitional facilities for the homeless, Class A, B, C, D, and E boarding homes as regulated by the New Jersey Department of Community Affairs; residential health care facilities as regulated by the New Jersey Department of Health; group homes for the developmentally disabled and mentally ill as licensed and/or regulated by the New Jersey Department of Human Services; and congregate living arrangements.
ASSISTED LIVING RESIDENCE
A facility 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.
CERTIFIED HOUSEHOLD
A household that has been certified by an administrative agent as a low-income household or moderate-income household.
COURT OF COMPETENT JURISDICTION
The approving authority that was established under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
DCA
The State of New Jersey Department of Community Affairs.
DEFICIENT HOUSING UNIT
A housing unit with health and safety code violations that require the repair or replacement of a major system. A major system includes components of a building as provided in the definition of "major system" below.
DEVELOPER
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.
DEVELOPMENT
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.
INCLUSIONARY DEVELOPMENT
A development containing both affordable units and market-rate units. This term includes, but is not necessarily limited to, new construction, the conversion of a nonresidential structure to residential and the creation of new affordable units through the reconstruction of a vacant residential structure.
LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 50% or less of the regional median household income by household size.
LOW-INCOME UNIT
A restricted unit that is affordable to a low-income household.
MAJOR SYSTEM
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.
MARKET-RATE UNITS
Housing not restricted to low- and moderate-income households that may sell or rent at any price.
MEDIAN INCOME
The median income by household size for the applicable housing region.
MODERATE-INCOME HOUSEHOLD
A household with a total gross annual household income in excess of 50% but less than 80% of the regional median household income by household size.
MODERATE-INCOME UNIT
A restricted unit that is affordable to a moderate-income household.
NONEXEMPT SALE
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.
RANDOM SELECTION PROCESS
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).
REGIONAL ASSET LIMIT
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 adopted Regional Income Limits published annually.
REHABILITATION
The repair, renovation, alteration or reconstruction of any building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C. 5:23-6.
RENT
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.
RESTRICTED UNIT
A dwelling unit, whether a rental unit or 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 UIETORP or MONT.
UHAC
The Uniform Housing Affordability Controls set forth in N.J.A.C. 5:80-26.1 et seq.
VERY-LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 30% or less of the regional median household income by household size.
VERY-LOW-INCOME UNIT
A restricted unit that is affordable to a very-low-income household.
WEATHERIZATION
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 rehabilitation.
The provisions of this chapter shall apply to all affordable housing developments and affordable housing units that currently exist and that are proposed to be created within the Township of Clark pursuant to the Township's most recently adopted Housing Element and Fair Share Plan.
The Township of Clark has determined that it will use the following mechanisms to satisfy its affordable housing obligations:
A. 
A rehabilitation program.
(1) 
The Township of Clark's rehabilitation program shall be designed to renovate deficient housing units occupied by low- and moderate-income households such that, after rehabilitation, these units will comply with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28, and the Rehabilitation Subcode, N.J.A.C. 5:23-6. The program is also guided by N.J.A.C. 5:93-5.2 and is subject to all applicable laws, regulations, ordinances and codes of the New Jersey Department of Community Affairs (DCA) and the Township of Clark. The Township program may include units rehabilitated under the Union County Home Improvement Program.
(2) 
Both owner-occupied and renter-occupied units shall be eligible for rehabilitation funds.
(3) 
All rehabilitated units shall remain affordable to low- and moderate-income households for a period of 10 years (the control period). For owner-occupied units, the control period will be enforced with a lien, and for renter-occupied units the control period will be enforced with a deed restriction.
(4) 
The Township of Clark shall dedicate an average of at least $10,000 for each unit to be rehabilitated through this program, reflecting the minimum average hard cost of rehabilitation for each unit.
(5) 
The Township of Clark shall adopt a resolution committing to fund any shortfall in the rehabilitation programs for the Township of Clark.
(6) 
The Township of Clark shall designate, subject to the approval of a Court of Competent Jurisdiction, one or more administrative agents to administer the rehabilitation program in accordance with N.J.A.C. 5:93-5.2. The administrative agent(s) shall provide a rehabilitation manual for the owner-occupancy rehabilitation program and for the rental-occupancy rehabilitation program to be adopted by resolution of the governing body and subject to approval of the Court. The rehabilitation manual shall be available for public inspection in the office of the Municipal Clerk and in the office(s) of the administrative agent(s).
(7) 
Units in a rehabilitation program shall be exempt from Uniform Housing Affordability Controls (UHAC), but shall be administered in accordance with the following:
(a) 
If a unit is vacant, upon initial rental subsequent to rehabilitation, or if a renter-occupied unit is re-rented prior to the end of controls on affordability, the deed restriction shall require the unit to be rented to a low- or moderate-income household at an affordable rent and affirmatively marketed pursuant to UHAC.
(b) 
If a unit is renter-occupied, upon completion of the rehabilitation, the maximum rate of rent shall be the lesser of the current rent or the maximum permitted rent pursuant to UHAC.
(c) 
Rents in rehabilitated rental units may increase annually which will be updated regularly, either by DCA or, in its absence, via the formula approved by the Court of Jurisdiction and attached as an appendix to the Township's Housing Rehabilitation Policies and Procedures Manual.
(d) 
Applicant and/or tenant households shall be certified as income-eligible in accordance with UHAC, except that households in owner-occupied units shall be exempt from the regional asset limit.
B. 
Alternative living arrangements. The administration of an alternative living arrangements shall be in compliance with N.J.A.C. 5:93-5.8 and UHAC, with the following exceptions:
(1) 
Affirmative marketing (N.J.A.C. 5:80-26.15); provided, however, that the units or bedrooms may be affirmatively marketed by the provider in accordance with an alternative plan approved by the Court;
(2) 
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
(3) 
With the exception of units established with capital funding through a twenty-year operating contract with the Department of Human Services, Division of Developmental Disabilities, alternative living arrangements shall have at least thirty-year controls on affordability in accordance with UHAC, unless an alternative commitment is approved by the court.
(4) 
The service provider for the alternative living arrangement shall act as the administrative agent for the purposes of administering the affirmative marketing and affordability requirements for the alternative living arrangement.
The following general guidelines apply to all newly constructed developments that contain very low-, low- and moderate-income housing units, including any currently unanticipated future developments that will provide low- and moderate-income housing units.
A. 
Low/moderate split and bedroom distribution of affordable housing units:
(1) 
The fair share obligation shall be divided equally between low- and moderate-income units, except that where there is an odd number of affordable housing units, the extra unit shall be a low-income unit. At least 13% of all restricted rental units shall be very-low-income units (affordable to a household earning 30% or less of median income). The very-low-income units shall be counted as part of the required number of low income units within the development.
(2) 
In each affordable development, at least 50% of the restricted units within each bedroom distribution shall be 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 low- and moderate-income units;
(b) 
At least 30% of all low- and moderate-income units shall be two-bedroom units;
(c) 
At least 20% of all 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 low- and moderate-income units within the inclusionary development. The 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.
(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;
(e) 
If not all of the foregoing requirements in Subsection B(2)(a) through (d) can be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the terms of Subsection B(2)(a) through (d) directly above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit;
(f) 
An accessible entranceway as set forth at P.L. 2005, c. 350 (N.J.S.A. 52:27D-311.a et seq.) and the Barrier Free Subcode, N.J.A.C. 5:23-7, or evidence that the Township of Clark 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 Township of Clark's affordable housing trust fund 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 Clark for the sole purpose of making the adaptable entrance of any 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 from adaptable to accessible entrances to the Construction Code Official of the Township of Clark.
[5] 
Once the Construction Code 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 that the cost estimate of such conversion is reasonable, payment shall be made to the Township of Clark's affordable housing trust fund in care of the Municipal Treasurer who shall ensure that the funds are deposited into the affordable housing trust fund and appropriately earmarked.
C. 
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 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. If COAH is not functioning, Clark will utilize the procedures approved by the Court.
(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.
(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. At least 13% of all low- and moderate-income rental units shall be affordable to households earning no more than 30% of regional median income, provided that at least 13% of all low- and moderate-income rental units shall be affordable to very-low-income households earning 30% or less of the regional median household income by household size, which very-low-income units shall be part of the low-income requirement. The very-low-income units shall be distributed as evenly as possible among the bedroom types.
(4) 
At least 13% of all low- and moderate-income rental units shall be affordable to very-low-income households earning 30% or less of the regional median household income by household size, which very-low-income units shall be part of the low-income requirement. The very-low-income units shall be distributed as evenly as possible among the bedroom types.
(5) 
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 prices for each bedroom type, and low-income ownership units must be available for at least two different prices for each bedroom type.
(6) 
In determining the initial sales prices and rent levels for restricted units other than age-restricted units (including assisted living units), 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.
(7) 
In determining the initial sales prices and rent levels for age-restricted (including assisted living) units, 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; and
(c) 
A two-bedroom unit shall be affordable to a two-person household or to two one-person households.
(8) 
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 homeowner 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.
(9) 
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 household size 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.
(10) 
The price of owner-occupied 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.
(11) 
The rent of low- and moderate-income units may be increased annually based on the percentage increase in the Housing Consumer Price Index for the northeast urban area. This increase shall not exceed 9% in any one year. Rent increases for units constructed pursuant to low-income housing tax credit regulations shall be indexed pursuant to the regulations governing low-income housing tax credits.
(12) 
Utilities. Tenant-paid utilities that are included in the utility allowance shall be so stated in the lease and shall be consistent with the utility allowance approved by HUD for its Section 8 program. Affordable units in an inclusionary development shall utilize the same type of heating source as the market units.
E. 
Phasing requirements. In inclusionary developments the following schedule shall be followed:
Maximum Percentage of Market-Rate Units Completed
Minimum Percentage of Low- and Moderate-Income Units Completed
25
0%
25 + 1
10%
50
50%
75
75%
90
100%
F. 
Affordable housing set-aside requirements.
[Added 9-18-2023 by Ord. No. 23-26]
(1) 
In the R-B Multiple-Family Residential District, the R-SH Age-Restricted/Senior Housing Overlay District, the R-TH Residential Townhouse District, and the R-B-16 Multiple-Family Residential District with an affordable housing set-aside of 20% (the "20% Districts"), developments creating fewer than five residential units shall pay the residential development fee to the Township of Clark Affordable Housing Trust Fund.
(2) 
In the 20% Districts, developments creating five residential units shall provide one affordable housing unit.
(3) 
In the 20% Districts, developments creating six or more units shall provide a minimum of one affordable housing unit, and:
(a) 
Where the set-aside creates a fraction of a unit less than 0.5, the developer shall have the option to either:
[1] 
Pay $200,000, as may be adjusted based on the United States Census Bureau's Quarterly Multifamily Housing Units Under Construction Index, to the Township of Clark Affordable Housing Trust Fund.
[2] 
Provide an affordable housing unit.
(b) 
When applying the set-aside creates a fraction of a unit greater than 0.5, the developer shall provide an affordable housing unit.
(c) 
All whole numbers created by the set-aside shall be provided as affordable units.
(4) 
In the DTV Downtown Village District with an affordable housing set-aside of 15% (the "15% District"), developments creating fewer than five residential units shall pay the residential development fee to the Township of Clark Affordable Housing Trust Fund.
(5) 
In the 15% District, developments creating five or six residential units shall provide one affordable housing unit.
(6) 
In the 15% District, developments creating seven or more residential units shall provide a minimum of one affordable housing unit, and:
(a) 
Where the set-aside creates a fraction of a unit less than 0.5, the developer shall have the option to either:
[1] 
Pay $200,000, as may be adjusted based on the United States Census Bureau's Quarterly Multifamily Housing Units Under Construction Index, to the Township of Clark Affordable Housing Trust Fund.
[2] 
Provide an affordable housing unit.
(b) 
When applying the set-aside creates a fraction of a unit greater than 0.5, the developer shall provide an affordable housing unit.
(c) 
All whole numbers created by the set-aside shall provide be provided as affordable units.
(7) 
If the Township of Clark enacts an ordinance creating a district with an affordable housing set-aside other than 20%, 16% or 15%, that ordinance will address the method of calculating partial affordable units. Additionally, if a redevelopment plan requires a set-aside, the redevelopment plan will address the appropriate set-aside percentage.
A. 
The Township of Clark shall adopt by resolution an affirmative marketing plan, subject to approval of a Court of Competent Jurisdiction, compliant with N.J.A.C. 5:80-26.15, as may be amended and supplemented.
B. 
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, sponsor or owner 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 Housing Region 2 and covers the period of deed restriction. The affirmative marketing plan shall provide a regional preference for all households that live and/or work in Housing Region 2 comprised of Essex, Morris, Union and Warren counties.
C. 
The administrative agent designated by the Township of Clark shall assure the affirmative marketing of all affordable units consistent with the affirmative marketing plan for the municipality.
D. 
In implementing the affirmative marketing plan, the administrative agent shall provide a list of counseling services to low- and moderate-income applicants on subjects such as budgeting, credit issues, mortgage qualification, rental lease requirements, and landlord/tenant law. Additionally, the administrative agent shall ensure that the following organizations are specifically notified of the availability of affordable units in the Township of Clark and provided with application forms:
FSHC (510 Park Blvd, Cherry Hill, NJ); the Latino Action Network (PO Box 943, Freehold, NJ 07728): East Orange NAACP (PO Box 1127, East Orange, NJ 07019); Newark NAACP (PO Box 1262, Newark, NJ 07101); Morris Co. NAACP (PO Box 2256, Morristown, NJ 07962); Elizabeth NAACP (PD Box 6732, Elizabeth, NJ 07206), and the Supportive Housing Association, 15 Alden St # 14, Cranford, NJ 07016
E. 
The affirmative marketing process for available affordable units shall begin at least four months prior to the expected date of occupancy.
F. 
The costs of advertising and affirmative marketing of the affordable units shall be the responsibility of the developer, sponsor or owner, unless otherwise determined or agreed to by the Township of Clark.
A. 
In referring certified households to specific restricted units, to the extent feasible, and without causing an undue delay in occupying the unit, the administrative agent shall strive to:
(1) 
Provide an occupant for each bedroom; and
(2) 
Provide children of different sex with separate bedrooms; and
(3) 
Prevent more than two persons from occupying a single bedroom; and
(4) 
Provide separate bedrooms for parents and children.
B. 
Additional provisions related to occupancy standards (if any) shall be provided in the municipal Operating Manual.
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 chapter until the Township of Clark elects to release the unit from such requirements; however, and prior to such an election, 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, for at least 30 years.
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.
D. 
At the time of the first sale of the unit, the 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 requirements of this chapter, 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 chapter 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 Code Official stating that the unit meets all code standards upon the first transfer of title that follows the expiration of the applicable minimum control period 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 et seq., 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 method used to determine the condominium association fee amounts and special assessments shall be indistinguishable between the low- and moderate-income unit owners and the market unit owners.
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 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 et seq., as may be amended and supplemented, such that 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, upon approval by the Township Council, and subject to the Court's approval, permit moderate-income purchasers to buy low-income units in housing markets if the administrative agent determines that there is 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 and pricing restrictions for low-income units.
C. 
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 homeowner association fees, as applicable) does not exceed 33% of the household's certified monthly income.
D. 
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 another certified household for a period not to exceed one year.
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 section, and the administrative agent shall issue such determination prior to the owner incurring such indebtedness.
B. 
With the exception of first purchase money mortgages, during a control period 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 that 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 chapter until the Township of Clark elects to release the unit from such requirements pursuant to action taken in compliance with N.J.A.C. 5:80-26.1 et seq., as may be amended and supplemented, and prior to such an election, a restricted rental unit must remain subject to the requirements of N.J.A.C. 5:80-26.1 et seq., as may be amended and supplemented, for at least 30 years.
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 Union. 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 chapter, despite the occurrence of any of the following events:
(1) 
Sublease or assignment of the lease of the unit;
(2) 
Sale or other voluntary transfer of the ownership of the unit; or
(3) 
The entry and enforcement of any judgment of foreclosure on the property containing the unit.
A. 
A written lease shall be required for all restricted rental units, except for units in an assisted living residence, 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 chapter.
D. 
No rent control ordinance or other pricing restriction shall be applicable to either the market units or the affordable units in any development in which at least 15% of the total number of dwelling units in the development are restricted affordable rental units in accordance with this chapter.
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 the regional median household income by household size.
(2) 
Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of the regional median household income by household size.
(3) 
Moderate-income rental units shall be reserved for households with a gross household income less than 80% of the regional median household income by household size.
B. 
The administrative agent shall certify a household as eligible for a restricted rental unit when the household is a very-low-income, 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 reliable 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 Subsection B(1) through (5) above with the administrative agent, who shall counsel the household on budgeting.
A. 
The position of Municipal Housing Liaison (MHL) for the Township of Clark is established by this chapter. The Township Council of the Township of Clark shall make the actual appointment of the MHL by means of a resolution.
(1) 
The MHL must be either a full-time or part-time employee of the Township of Clark.
(2) 
The person appointed as the MHL and the qualifications of such person shall be approved by the Court.
(3) 
The MHL must meet all requirements for qualifications, including initial and periodic training.
(4) 
The Municipal Housing Liaison shall be responsible for oversight and administration of the affordable housing program for the Township of Clark, including the following responsibilities which may not be contracted out to the administrative agent:
(a) 
Serving as the municipality's primary point of contact for all inquiries from the state, affordable housing providers, administrative agents and interested households;
(b) 
Overseeing the implementation of the Affirmative Marketing Plan and affordability controls by the administrative agent(s);
(c) 
When applicable, supervising any contracting administrative agent;
(d) 
Monitoring the status of all restricted units in the Township of Clark's Fair Share Plan;
(e) 
Compiling, verifying and submitting annual reports as required by this chapter;
(f) 
Coordinating meetings with affordable housing providers and administrative agents, as applicable; and
(g) 
Attending continuing education opportunities on affordability controls, compliance monitoring and affirmative marketing as offered.
B. 
The Township of Clark shall designate by resolution of the Township Council, subject to the approval of the Court, one or more administrative agents to administer and affirmatively market the affordable units constructed in Clark in accordance with this ordinance. The Municipal Housing Liaison shall supervise the work of the administrative agent(s).
C. 
An operating manual shall be provided by the administrative agent(s) to be adopted by resolution of the governing body and subject to the approval of the Court. The operating manuals shall be available for public inspection in the office of the Municipal Clerk and in the office(s) of the administrative agent(s).
D. 
Duties and responsibilities of the administrative agents.
(1) 
The administrative agent(s) shall perform the duties and responsibilities of an administrative agent as are set forth in UHAC and which are described in full detail in the project or program operating manual, including those set forth in N.J.A.C. 5:80-26.14, 16 and 18 thereof, which includes:
(a) 
Attending continuing education opportunities on affordability controls, compliance monitoring, and affirmative marketing as offered or approved by COAH or the Affordable Housing Professionals of New Jersey (AHPNJ);
(b) 
Affirmative marketing;
(c) 
Household certification;
(d) 
Affordability controls;
(e) 
Records retention;
(f) 
Resale and rerental;
(g) 
Processing requests from unit owners;
(h) 
Enforcement, though the ultimate responsibility for retaining controls on the units rests with the municipality; and
(i) 
Preparing monitoring reports for submission to the Municipal Housing Liaison in time to meet the deadlines for reporting set forth in this ordinance.
(2) 
The administrative agent shall have authority to take all actions necessary and appropriate to carry out its responsibilities hereunder.
(3) 
The fees and costs of the administrative agent(s) shall be paid by the owners of the affordable units for which the services of the administrative agent are required. The administrative agent(s) shall nevertheless report to and be responsible to the Township of Clark in the performance of their duties.
A. 
Upon the occurrence of a breach of any of the regulations governing the affordable unit by an owner, developer or tenant, the municipality shall have all remedies provided at law or equity, including but not limited to foreclosure, tenant eviction, municipal fines, a requirement for household recertification, acceleration of all sums due under a mortgage, recoupment of any funds from a sale in the 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 low- or moderate-income unit and advising the owner, developer or tenant of the penalties for such violations, the municipality may take the following action 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 municipality 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 found 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 or imprisonment for a period not to exceed 90 days, or both. Each and every day that the violation continues or exists shall be considered a separate and specific violation of these provisions and not as a continuing offense.
(b) 
In the case of an owner who has rented his or her low- or moderate-income unit in violation of the regulations governing affordable housing units, payment into the Township of Clark Affordable Housing Trust Fund of the gross amount of rent illegally collected.
(c) 
In the case of an owner who has rented his or her 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 municipality may file a court action in the Superior Court seeking a judgment, which would result in the termination of the owner's equity or other interest in the unit, in the nature of a mortgage foreclosure. Any 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 low- and moderate-income unit.
C. 
Such judgment shall be enforceable, at the option of the municipality, by means of an execution sale by the Sheriff, at which time the 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 municipality, including attorney's fees. The violating owner shall have the right to possession terminated as well as the title conveyed pursuant to the Sheriffs sale.
D. 
The proceeds of the Sheriffs sale shall first be applied to satisfy the first purchase money mortgage lien and any prior liens upon the low- and moderate-income unit. The excess, if any, shall be applied to reimburse the municipality for any and all costs and expenses incurred in connection with either the court action resulting in the judgment of violation or the Sheriffs sale. In the event that the proceeds from the Sheriffs sale are insufficient to reimburse the municipality in full as aforesaid, the violating owner shall be personally responsible for and to the extent of such deficiency, in addition to any and all costs incurred by the municipality 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 municipality 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 municipality 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 municipality. Any interest accrued or earned on such balance while being held in escrow shall belong to and shall be paid to the municipality, whether such balance shall be paid to the owner or forfeited to the municipality.
E. 
Foreclosure by the municipality 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 low- and moderate-income unit. Title shall be conveyed to the purchaser at the Sheriffs 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 Sheriffs sale shall not be entitled to any right of redemption.
F. 
If there are no bidders at the Sheriffs sale, or if insufficient amounts are bid to satisfy the first purchase money mortgage and any prior liens, the municipality may acquire title to the 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 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.
G. 
Failure of the low- and moderate-income unit to be either sold at the Sheriffs sale or acquired by the municipality shall obligate the owner to accept an offer to purchase from any qualified purchaser which may be referred to the owner by the municipality, with such offer to purchase being equal to the maximum resale price of the low- and moderate-income unit as permitted by the regulations governing affordable housing units.
H. 
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 designated pursuant to this chapter shall be filed in writing with the Court.