[HISTORY: Adopted by the Council of the Borough
of Fair Lawn 12-17-1996 by Ord. No. 1659-96. Amendments noted
where applicable.]
[Amended 6-23-2020 by Ord. No. 2545-2020]
The Borough of Fair Lawn has a constitutional
obligation to provide affordable housing to its regional fair share
of very-low-, low-, and moderate-income households in accordance with
the Fair Housing Act.[1]
[1]
Editor’s Note: See N.J.S.A. 52:27D-301 et seq.
[Added 2-16-2010 by Ord. No. 2176-2010[1]]
A.
Affordable housing obligation.
(1)
This section 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 section shall apply except where inconsistent
with applicable law.
(2)
The Borough of Fair Lawn 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 governing
body. The Fair Share Plan describes the ways the Borough of Fair Lawn
shall address its fair share for very-low, low- and moderate-income
housing as determined by the settlement agreement between the Borough
and the Fair Share Housing Center, and approved by the Court and documented
in the Housing Element.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(3)
This section implements and incorporates the Fair Share Plan and
addresses the requirements of N.J.A.C. 5:97, as may be amended and
supplemented.
(4)
The Borough of Fair Lawn shall file monitoring reports with the Superior
Court of New Jersey in accordance with N.J.A.C. 5:96, 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 in accordance with N.J.A.C. 5:96 shall be available
to the public at the Borough of Fair Lawn Municipal Building, Municipal
Clerk's Office, 8-01 Fair Lawn Avenue, New Jersey.
[Amended 6-23-2020 by Ord. No. 2545-2020]
B.
ACCESSORY APARTMENT
ACT
ADAPTABLE
ADMINISTRATIVE AGENT
AFFIRMATIVE MARKETING
AFFORDABILITY AVERAGE
AFFORDABLE
AFFORDABLE DEVELOPMENT
AFFORDABLE HOUSING DEVELOPMENT
AFFORDABLE HOUSING PROGRAM
AFFORDABLE UNIT
AGENCY
AGE-RESTRICTED UNIT
(1)
(2)
(3)
ASSISTED LIVING RESIDENCE
CERTIFIED HOUSEHOLD
COAH
DCA
DEFICIENT HOUSING UNIT
DEVELOPER
DEVELOPMENT
INCLUSIONARY DEVELOPMENT
LOW-INCOME HOUSEHOLD
LOW-INCOME UNIT
MAJOR SYSTEM
MARKET-RATE UNITS
MEDIAN INCOME
MODERATE-INCOME HOUSEHOLD
MODERATE-INCOME UNIT
NONEXEMPT SALE
RANDOM SELECTION PROCESS
REGIONAL ASSET LIMIT
REHABILITATION
RENT
RESTRICTED UNIT
UHAC
VERY-LOW-INCOME HOUSEHOLD
VERY-LOW-INCOME UNIT
WEATHERIZATION
Definitions. The following terms when used in this section shall
have the meanings given in this subsection:
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.
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 section, N.J.A.C. 5:96, 5:97 and 5:80-26.1
et seq. as designated by the Borough of Fair Lawn, or in the absence
of such appointment by the Borough, as appointed by the developer,
sponsor or owner of affordable housing.
[Amended 6-23-2020 by Ord. No. 2545-2020]
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent within the means of a low- or moderate-income
household as defined in N.J.A.C. 5:97-9; 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
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 New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1, et seq.).
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 or older; or
At least 80% of the units are occupied by one person that is
55 years 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 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, that
was established under 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.
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.
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 low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable county,
as adopted annually by the most recently published regional weighted
average of the uncapped Section 8 income limits published by HUD and
by the Superior Court.
[Amended 6-23-2020 by Ord. No. 2545-2020]
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 the most recently published regional weighted average
of the uncapped Section 8 income limits published by HUD and by the
Superior Court.
[Amended 6-23-2020 by Ord. No. 2545-2020]
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 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.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the median household income.
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 rehabilitation.
C.
Affordable housing programs. The Borough of Fair Lawn has determined
that it will use the following mechanisms to satisfy its affordable
housing obligations:
(1)
Rehabilitation program.
(a)
The Borough of Fair Lawn rehabilitation program shall be designed
to renovate deficient housing units occupied by very-low, 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.
(b)
Both owner-occupied and renter-occupied units shall be eligible
for rehabilitation funds. The Borough shall participate in Bergen
County's housing rehabilitation program.
(c)
All rehabilitated units shall remain affordable to very-low,
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.
(d)
The Borough of Fair Lawn shall dedicate an average of $10,000
for each unit to be rehabilitated through this program, reflecting
the minimum hard cost of rehabilitation for each unit.
(f)
The Borough of Fair Lawn shall designate, subject to the approval
of the Superior Court of New Jersey, one or more administrative agents
to administer the rehabilitation program in accordance with N.J.A.C.
5:96 and 5:97. The administrative agent(s) shall provide a rehabilitation
manual for the owner occupancy rehabilitation program and a rehabilitation
manual for the rental occupancy rehabilitation program to be adopted
by resolution of the governing body and subject to approval of the
Superior Court of New Jersey. Both rehabilitation manuals shall be
available for public inspection in the office of the Municipal Clerk
and in the office(s) of the administrative agent(s).
[Amended 6-23-2020 by Ord. No. 2545-2020]
(g)
Units in a rehabilitation program shall be exempt from N.J.A.C.
5:97-9 and Uniform Housing Affordability Controls (UHAC), but shall
be administered in accordance with the following:
[1]
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is rerented 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 N.J.A.C. 5:97-9 and UHAC.
[2]
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 N.J.A.C. 5:97-9 and UHAC.
[3]
Rents in rehabilitated units may increase annually based on
the standards in N.J.A.C. 5:97-9.
[4]
Applicant and/or tenant households shall be certified as income
eligible in accordance with N.J.A.C. 5:97-9 and UHAC, except that
households in owner-occupied units shall be exempt from the regional
asset limit.
(2)
Inclusionary zoning.
(a)
Phasing. 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
|
(b)
Design. In inclusionary developments, to the extent possible,
very-low-, low- and moderate-income units shall be integrated with
the market units.
(c)
Utilities. Affordable units shall utilize the same type of heating
source as market units within the affordable development.
(3)
Payments in lieu.
[Added 1-29-2013 by Ord. No. 2262-2013]
(a)
The standards for the collection of payments in lieu of constructing
affordable units shall be in accordance with COAH's rules at N.J.A.C.
5:97-6.4.
(b)
) Payments in lieu of constructing affordable units shall only be permitted to satisfy the requirements of § 49-2D if:
[Amended 6-23-2020 by Ord. No. 2545-2020]
[1]
The Borough wishes to use payments in lieu to address a fractional
affordable housing unit; or
[2]
No payment in lieu of construction shall be acceptable unless said
payment is directed towards an approved municipally sponsored 100%
affordable project, and the developer at the time of application can
demonstrate that the payment in lieu will create an equivalent number
of affordable units of the same type and meeting the same bedroom
distribution and very-low-income/low-income/moderate-income split
that would be required on site, which units are otherwise consistent
with the terms of the settlement agreement; and the units can be constructed
on a schedule consistent with what would be required by N.J.A.C. 5:93-5.6(d)
for on-site units.
(c)
The
amount of the payments in lieu shall be either the actual off-site
project construction costs, less the anticipated proceeds from the
sale of the off-site unit or the capitalization of rental income,
presented to and approved by the Board or Borough, or shall be set
by order of the court having jurisdiction over the affordable housing
obligations of the Borough. Where no actual off-site unit or where
no such actual off-site project construction costs have been presented
to the Board and no court order exists, the presumptive payment in
lieu shall be $200,000 per unit.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(d)
The
affordable housing requirement shall not be rounded.
[Added 6-23-2020 by Ord.
No. 2545-2020]
D.
New construction. The Borough shall require that an appropriate percentage
of residential units be set aside for very-low-, low-, and moderate-income
households. This requirement shall apply beginning with the effective
date of this ordinance[3] to any residential development, including the residential
portion of a mixed-use development, which consists of five or more
new residential units, whether permitted by zoning, a variance granted
by the Township's Planning or Zoning Board, or adoption of a redevelopment
plan or amended redevelopment plan in areas in need of redevelopment
or rehabilitation. For inclusionary projects in which the affordable
units are to be offered for sale, a minimum set-aside of 20% of the
total number of units shall be provided; for projects in which the
affordable units are to be offered for rent, a minimum set-aside of
15% of the total number of units shall be provided. The minimum density
for applicable developments shall be at least eight dwelling units
per acre. This requirement does not create any entitlement for a property
owner or applicant for a zoning amendment, variance, or adoption of
a redevelopment plan or amended redevelopment plan in areas in need
of redevelopment or rehabilitation, or for approval of any particular
proposed project. This requirement does not apply to any sites or
specific zones otherwise identified in the Fair Share Plan, for which
density and set-aside standards shall be governed by the specific
standards set forth therein, though all other provisions of this section
shall be applicable to those sites unless otherwise specified. All
subdivision and site plan approvals of qualifying residential developments
shall be conditioned upon compliance with the provisions of this section.
Where a developer demolishes existing dwelling units and builds new
dwelling units on the same site, the provisions of this section shall
apply only if the net number of new dwelling units is five or more.
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
very-low-, low- and moderate-income units:
[Amended 11-27-2018 by Ord. No. 2482-2018]
(1)
Low/moderate split and bedroom distribution of affordable housing
units:
(a)
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.
(b)
In each affordable development, at least 50% of the restricted
units within each bedroom distribution shall be low-income units.
Thirteen percent of all affordable units shall be very-low-income
units. The very-low-income units shall count as a portion of the share
of low-income units.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(c)
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 shall
be no greater than 20% of the total affordable units;
[2]
At least 30% of all affordable units shall be two-bedroom units;
[3]
At least 20% of all affordable units shall be three-bedroom
units; and
[4]
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(2)
Accessibility requirements.
(a)
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 5:97-3.14.
(b)
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:
[1]
An adaptable toilet and bathing facility on the first floor;
[2]
An adaptable kitchen on the first floor;
[3]
An interior accessible route of travel on the first floor;
[4]
An interior accessible route of travel shall not be required
between stories within an individual unit;
[5]
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;
and
[6]
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 5:97-3.14, or evidence that the Borough of Fair Lawn has
collected funds from the developer sufficient to make 10% of the adaptable
entrances in the development accessible:
[a]
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.
[b]
To this end, the builder of restricted units shall deposit funds
within the Borough of Fair Lawn Affordable Housing Trust Fund sufficient
to install accessible entrances in 10% of the affordable units that
have been constructed with adaptable entrances.
[c]
The funds deposited under Subsection D(2)(b)[6][b] above shall
be used by the Borough of Fair Lawn 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.
[d]
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 Official of the Borough of Fair Lawn.
[e]
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible meets
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7 and
5:97-3.14, and that the cost estimate of such conversion is reasonable,
payment shall be made to the Borough of Fair Lawn 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.
[f]
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 5:97-3.14.
(3)
Maximum rents and sales prices.
(a)
In establishing rents and sales prices of affordable housing
units, the administrative agent shall follow the procedures set forth
in UHAC and utilizing the regional income limits established by the
most recently published regional weighted average of the uncapped
Section 8 income limits published by HUD and by the Superior Court.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(b)
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 very-low,
low- and moderate-income units shall be affordable to households earning
no more than 52% of median income.
(c)
The developers and/or municipal sponsors of restricted-rental
units shall establish at least one rent for each bedroom type for
both very-low, low-income and moderate-income units.
[1]
At least 13% of all low- and moderate-income rental units shall
be affordable to households earning no more than 30% of median income.
[Amended 6-23-2020 by Ord. No. 2545-2020]
[2]
NOTE: N.J.S.A. 52:27D-329.1 (P.L. 2008, c. 46) includes the
requirement that all municipal fair share plans provide for the reservation
of at least 13% of the affordable units for very-low-income households,
i.e., households earning 30% or less of the median income.
(d)
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.
(e)
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units other
than assisted living facilities, the following standards shall be
used:
[1]
A studio shall be affordable to a one-person household;
[2]
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
[3]
A two-bedroom unit shall be affordable to a three-person household;
[4]
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
[5]
A four-bedroom unit shall be affordable to a six-person household.
(f)
In determining the initial rents for compliance with the affordability
average requirements for restricted units in assisted living facilities,
the following standards shall be used:
(g)
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.
(h)
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.
(i)
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.
(j)
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 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.
(k)
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.
[Amended 6-23-2020 by Ord. No. 2545-2020]
[3]
Editor's Note: "This ordinance" refers to Ord. No. 2482-2018,
adopted 11-27-2018.
E.
The following general guidelines apply to all 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:
(1)
Affirmative marketing requirements.
(a)
The Borough of Fair Lawn shall adopt by resolution an affirmative
marketing plan, subject to approval of the New Jersey Superior Court,
compliant with N.J.A.C. 5:80-26.15, as may be amended and supplemented.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(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 1 and covers the period of deed restriction.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(c)
The affirmative marketing plan shall provide a regional preference
for all households that live and/or work in Housing Region 1 comprised
of Bergen, Hudson, Passaic and Sussex Counties.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(d)
An administrative agent designated by the Borough of Fair Lawn,
or as appointed by the developer, sponsor, or owner of affordable
housing, shall assure the affirmative marketing of all affordable
units is consistent with the affirmative marketing plan for the municipality.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(e)
In implementing the affirmative marketing plan, the administrative
agent shall provide a list of 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.
(f)
The
affirmative marketing process for available affordable units shall
begin at least four months prior to the expected date of occupancy.
(g)
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 Borough of Fair Lawn.
(2)
Occupancy standards.
(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:
(b)
Additional provisions related to occupancy standards (if any)
shall be provided in the municipal operating manual.
(3)
Control periods for restricted-ownership units and enforcement mechanisms.
(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 section until the Borough of Fair Lawn 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 section, 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 section 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 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.
(4)
Price restrictions for restricted-ownership units, homeowner association
fees and resale prices. 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 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.
(5)
Buyer income eligibility.
(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 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)
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.
(6)
Limitations on indebtedness secured by ownership unit; subordination.
(a)
Prior to incurring any indebtedness to be secured by a restricted-ownership
unit, the administrative agent shall determine in writing that the
proposed indebtedness complies with the provisions of this section.
(b)
With the exception of original 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).
(7)
Control periods for restricted-rental units.
(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 section until the Borough of Fair Lawn elects to release the
unit from such requirements pursuant to action taken in compliance
with N.J.A.C. 5:80-26.1, 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, 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 Bergen. 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 section, despite the occurrence of any of the following
events:
(8)
Price restrictions for rental units; leases.
(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 section.
(9)
Tenant income eligibility.
(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,
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 Subsection E(9)(b)[1] through [5] above with the administrative agent, who shall counsel the household on budgeting.
F.
Administration.
(1)
The position of Municipal Housing Liaison (MHL) for the Borough of
Fair Lawn is established by this section. The Borough Council shall
make the actual appointment of the MHL by means of a resolution.
(a)
The MHL must be either a full-time or part-time employee of
Borough of Fair Lawn.
(b)
The person appointed as the MHL must be reported to the New
Jersey Superior Court for approval.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(c)
The MHL must meet all applicable requirements for qualifications,
including initial and periodic training.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(d)
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of Fair Lawn, including the following responsibilities which may not
be contracted out to the administrative agent:
[1]
Serving as the municipality's primary point of contact for all
inquiries from the state, affordable housing providers, administrative
agents and interested households;
[2]
The implementation of the affirmative marketing plan and affordability
controls;
[3]
When applicable, supervising any contracting administrative
agent;
[4]
Monitoring the status of all restricted units in the Borough
of Fair Lawn Fair Share Plan;
[5]
Compiling, verifying and submitting annual reports as required
by the New Jersey Superior Court;
[Amended 6-23-2020 by Ord. No. 2545-2020]
[6]
Coordinating meetings with affordable housing providers and
administrative agents, as applicable; and
[7]
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by the New Jersey Superior Court.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(2)
The Borough of Fair Lawn shall designate by resolution of the Borough
Council, subject to the approval of the New Jersey Superior Court,
one or more administrative agents to administer newly constructed
affordable units in accordance with N.J.A.C. 5:96, 5:97 and UHAC.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(3)
An operating manual shall be provided by the administrative agent(s)
to be adopted by resolution of the governing body and subject to approval
of the New Jersey Superior 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).
[Amended 6-23-2020 by Ord. No. 2545-2020]
(4)
The administrative agent 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 operating manual, including those
set forth in N.J.A.C. 5:80-26.14, 5:80-26.16 and 5:80-26.18 thereof,
which includes:
(a)
Attending continuing education opportunities on affordability
controls, compliance monitoring, and affirmative marketing as offered
or approved by the New Jersey Superior Court;
[Amended 6-23-2020 by Ord. No. 2545-2020]
(b)
Affirmative marketing;
(c)
Household certification;
(d)
Affordability controls;
(e)
Records retention;
(f)
Resale and rerental;
(g)
Processing requests from unit owners; and
(h)
Enforcement, though the ultimate responsibility for retaining
controls on the units rests with the municipality.
(i)
The administrative agent shall have authority to take all actions
necessary and appropriate to carry out its responsibilities hereunder.
G.
Enforcement of affordable housing regulations.
(1)
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.
(2)
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:
(a)
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:
[1]
A fine of not more than $1,000 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;
[2]
In the case of an owner who has rented his or her very-low,
low- or moderate-income unit in violation of the regulations governing
affordable housing units, payment into the Borough of Fair Lawn Affordable
Housing Trust Fund of the gross amount of rent illegally collected;
[3]
In the case of an owner who has rented his or her 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.
(b)
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.
(3)
Such judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the 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 municipality,
including attorney's fees. The violating owner shall have the right
to possession terminated as well as the title conveyed pursuant to
the Sheriff's sale.
(4)
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
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 Sheriff's sale. In the event that the proceeds
from the Sheriff's 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.
(5)
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 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.
(6)
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 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.
(7)
Failure of the very-low, low- and moderate-income unit to be either
sold at the Sheriff's 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 very-low,
low- and moderate-income unit as permitted by the regulations governing
affordable housing units.
(8)
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.
H.
Affirmative marketing plan. The affirmative marketing plan is a regional
marketing strategy designed to attract buyers and/or renters of all
majority and minority groups, regardless of sex, age or number of
children, to housing units which are being marketed by a developer/sponsor,
municipality and/or designated administrative agency of affordable
housing. The plan will address the requirements of N.J.A.C. 5:96 et
seq. In addition, the plan prohibits discrimination in the sale, rental,
financing or other services related to housing on the basis of race,
color, sex, religion, handicap, age, familial status/size or national
origin. The Borough of Fair Lawn is in the housing region consisting
of Bergen, Passaic, Hudson and Sussex Counties. The affirmative marketing
program is a continuing program and will meet the following requirements:
(1)
All newspaper articles, announcements and requests for applications
for low- and moderate-income units will appear in the Bergen County
Record.
(2)
The primary marketing will take the form of at least one press release
sent to the above publication and a paid display advertisement in
the above publication. Additional advertising and publicity will be
on an as-needed basis. The advertisement will include the:
(3)
All newspaper articles, announcements and requests for applications
for low- and moderate-income housing will appear in the Bergen County
Record and The Star Ledger, and may appear on the local cable television
station.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(4)
The following is the location of applications, brochure(s), sign(s),
and/or poster(s) used as part of the affirmative marketing program
including specific employment centers within the region:
(5)
The following is a list of community organization(s) 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: County Offices on Aging in Bergen, Passaic, Hudson
and Sussex Counties, Fair Share Housing Center, the New Jersey State
Conference of the NAACP, the Latino Action Network, Bergen County
NAACP, Bergen County Urban League, Bergen County Housing Coalition,
and Supportive Housing Association.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(6)
The following is a description of the random selection method that
will be used to select occupants of low- and moderate-income housing:
There will be a period in which to complete and submit applications.
The names of households that have completed applications in that time
frame and who are income eligible will be randomly selected to see
the apartments. Each landlord will select the renter for his/her unit
from the eligible list of applicants provided by the housing administrator.
(7)
Fair Lawn is ultimately responsible for administering the affirmative
marketing program. Fair Lawn has delegated this responsibility to
an affordable housing consultant to be appointed on an annual basis
which will income qualify low- and moderate-income households; place
income-eligible households in very-low, low- and moderate-income units
upon initial occupancy; provide for the initial occupancy of very-low,
low- and moderate-income units with income-qualified households; continue
to qualify households for reoccupancy of units as they become vacant
during the period of affordability controls; assist with advertising
and outreach to low- and moderate-income households if in contract;
and enforce the terms of the deed restriction and mortgage loan as
per the Uniform Housing Affordability Controls (UHAC).
(8)
The Affordable Housing Administrator will act as liaison to the affordable
housing consultant. The affordable housing consultant will provide
counseling services to very-low, low- and moderate-income applicants
on subjects such as budgeting, credit issues, mortgage qualification,
responsibilities of home ownership, rental lease requirements and
landlord/tenant law. Applications will be mailed to prospective applicants
upon request. Additionally, applications will be sent to the chief
administrative employees of each of the following agencies in the
counties of Bergen, Passaic, Hudson and Sussex:
(9)
Households who live or work in the housing region may be given preference
for rental units constructed within that housing region. Applicants
living outside the housing region will have an equal opportunity for
units after regional applicants have been initially serviced. Fair
Lawn intends to comply with UHAC.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(10)
Developers of low- and moderate-income housing units may assist in
the marketing of the affordable units in their respective developments
if so designated by Fair Lawn.
(11)
The marketing program will commence at least 120 days before the
issuance of either temporary or permanent certificates of occupancy.
The marketing program will continue until all low- and moderate-income
housing units are initially occupied and for as long as affordable
units are deed restricted and occupancy or reoccupancy of units continues
to be necessary.
(12)
Fair Lawn will comply with monitoring and reporting requirements
as follows:
[Amended 6-23-2020 by Ord. No. 2545-2020]
(a)
On the first anniversary of the court’s entry of final judgment
of compliance and repose, and every anniversary thereafter, the Borough
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 the Fair Share Housing
Center (FSHC), using forms previously developed for this purpose by
the Council on Affordable Housing or any other forms endorsed by the
court-appointed special master and FSHC.
(b)
For the midpoint realistic opportunity review, due on July 1, 2020,
as required pursuant to N.J.S.A. 52:27D-313, the Borough shall post
on its municipal website, with a copy provided to the Fair Share Housing
Center, a status report as to its implementation of the 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 the 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.
(c)
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
the court’s entry of final judgment of compliance and repose,
and every third year thereafter, the Borough will post on its municipal
website, with a copy provided to the 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 the 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.
I.
Enforcement of affordable housing regulations.
(1)
By accepting state funds for affordable housing purposes, or by submitting
to the jurisdiction of the Superior Court of New Jersey, a municipality
shall be deemed to have delegated to its administrative agent the
day-to-day responsibility for implementing practices and procedures
designed to ensure effective compliance with the controls set forth
in this section. The municipality, however, shall retain the ultimate
responsibility for ensuring effective compliance with this section.
[Amended 6-23-2020 by Ord. No. 2545-2020]
(2)
Administrative agent practices and procedures shall include, but
shall not necessarily be limited to, the following:
(a)
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.
(b)
Requiring that all certified applicants for restricted units
execute a certificate substantially in the form, as applicable, of
either the ownership or rental certificates.
(c)
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 can be made.
(3)
If the unit is owner-occupied, the unit may be resold only to a household
that has been approved in advance and in writing by the administrative
agent.
(4)
No sale of the unit shall be lawful, unless approved in advance and
in writing by the administrative agent, and no sale shall be for a
consideration greater than regulated maximum permitted resale price,
as determined by the administrative agent.
(5)
No refinancing, equity loan, secured letter of credit, or any other
mortgage obligation or other debt secured by the unit may be incurred
except as approved in advance and in writing by the administrative
agent, and at no time will the administrative agent approve any debt,
if incurring the debt would make the total of all such debt exceed
95% of the then applicable maximum permitted resale price.
(6)
The owner of the unit shall at all times maintain the unit as his
or her principal place of residence, which shall be defined as residing
at the unit at least 260 days out of each calendar year.
(7)
Except as set forth in N.J.A.C. 5:80-26.18(c)4vii, at no time shall
the owner of the unit lease or rent the unit to any person or persons,
except on a short-term hardship basis, as approved in advance and
in writing by the administrative agent.
(8)
The maximum permitted rent chargeable to affordable tenants is as
stated in the notice required to be posted in accordance with N.J.A.C.
5:80-26.18(d)3 of this section, a copy of which shall be enclosed,
and copies of all leases for affordable rental units must be submitted
annually to the administrative agent.
(9)
Banks and other lending institutions are prohibited from issuing
any loan secured by owner-occupied real property subject to the affordability
controls set forth in this section, if such loan would be in excess
of amounts permitted by the restriction documents recorded in the
deed or mortgage book in the county in which the property is located.
J.
Appeals. Appeals from all decisions of an administrative agent designated
pursuant to this section shall be filed in writing with the New Jersey
Housing and Mortgage Finance Agency (NJHMFA). HMFA shall have 15 days
to render a written decision of an appeal, which shall be considered
to be final.
[Amended 6-23-2020 by Ord. No. 2545-2020]
[1]
Editor's Note: This ordinance also repealed former § 49-2,
Affirmative marking plan.
[Added 7-28-2020 by Ord.
No. 2549-2020]
A.
Land. The
land to which these zoning changes shall apply generally abuts the
north and south sides of Fair Lawn Avenue between the intersections
of Chandler Drive and Abbott Road. These lands are designated as Block
3605, Lots 1 and 2; Block 3609, Lot 14; Block 3722, Lots 1 through
5; Block 3726, Lots 2, 3, 5, 5.01, and 6; Block 4601, Lots 2 through
6; Block 4619, Lots 1 through 4; Block 4701, Lots 5 through 7; and
Block 4701.01, Lot 1, on the Official Tax Map of the Borough (Fair
Lawn Avenue Site). The area shall be designated as the "Fair Lawn
Avenue Affordable Housing Overlay District" on the Zoning Map of the
Borough of Fair Lawn.
B.
Permitted
uses.
(1)
Mixed-use
buildings, comprised of any nonresidential use(s) permitted in the
B-1 and B-3 Zone Districts on the first floor, and residential multifamily
dwellings on the second and third floors, as applicable. Residential
uses shall not be permitted on the first floor.
C.
D.
There shall
be an affordable housing set-aside for all mixed-use development on
the Fair Lawn Avenue site. Each such development shall include a twenty-percent
set-aside for affordable housing. All affordable housing units in
each residential development in the Fair Lawn Avenue Overlay District
shall follow the requirements as outlined in the Uniform Housing Affordability
Controls at N.J.A.C. 5:80-26.1 et seq.
E.
Nothing
in this section shall restrict or limit the powers of the Planning
Board of Fair Lawn and discharge of its statutory responsibilities,
including its review of and granting or denial of a development application
for the site under the Municipal Land Use Law,[1] the ordinances and codes of the Borough of Fair Lawn,
other state or federal regulatory requirements, or any other applicable
law.
[1]
Editor’s Note: See N.J.S.A. 40:55D-1 et seq.
[Added 2-11-1997 by Ord. No. 1666-97]
A.
Land. The land to which these zoning changes shall
apply is approximately 20 acres in size, located at the northeast
corner of Route 208 and Fair Lawn Avenue, and designated as Block
4702, Lot 1 on the official tax map of the Borough (“site”).
The site shall be designated as the CR Combined Residential District
on the Zoning Map of the Borough of Fair Lawn.
B.
Zoning; uses.
(1)
The zoning uses and the bulk requirements set
forth herein shall apply to the site.
(2)
Multiple-family dwellings shall be permitted
in this zone. All other uses shall be prohibited.
(3)
Uses and structures customarily incidental to
multiple-family dwellings shall be permitted. For this site, such
uses shall also include a swimming pool, recreation facilities and
structures, and a structure not to exceed 3,000 square feet for recreation,
meeting or other similar purposes, and for storage purposes.
C.
Density. The maximum density of the site shall be
17.65 dwelling units per acre. While the site is approximately 20
acres in size, the maximum number of dwelling units that may be constructed
on the site shall not exceed 352 units.
D.
Inclusionary component.
(1)
The development shall include 52 units of housing
affordable to low- and moderate-income households. These units shall
be equally divided between low- and moderate-income units.
(2)
Approximately 25% of the affordable units, or
14 units, shall be age restricted in accordance with COAH's regulations
defining “age restricted,” as they may be amended from
time to time. These units shall be one bedroom in size.
(3)
While it is contemplated that all units in the
development shall be rental units, all affordable housing units shall
be and remain rental units, under applicable COAH regulations as they
may be amended from time to time.
(4)
The 52 affordable housing units shall be integrated
with the market-rate units throughout the development and within the
several buildings in which they shall be located.
E.
Affordable housing unit types.
(1)
Eight units shall be three bedrooms in size.
Eighteen units shall be two bedrooms in size. The remaining 26 affordable
housing units, including the 14 units restricted to senior citizens,
shall be one bedroom in size.
(2)
There shall be no bedroom distribution restrictions
imposed on the market-rate units.
F.
Bulk requirements. The site and the development thereon
shall be subject to the bulk requirements of the existing R-3 Zone
District, except as modified below:
(1)
Height.
(a)
Up to 156 units, or approximately 45% of the
maximum number of units that may be constructed on the site, may be
located in three-story buildings. No more than 13 three-story buildings
shall be constructed on the site as part of the development. The maximum
height of the three-story buildings shall be 40 feet. The height shall
be measured from the center line of the internal roadway opposite
and in front of each of the centers of the building walls facing the
internal roadways to the highest point of the roof surface, regardless
of design, shape or pitch of the roof.
(b)
The remaining units shall be located in two-story
buildings. The maximum height of the two-story buildings in this development
shall be 35 feet. The height shall be measured from the center line
of the internal roadways in front of each of the buildings.
(c)
All buildings in the development shall be oriented
in a manner and subject to the review of the Planning Board to insure
the promotion of desirable aesthetic conditions and a desirable visual
environment both from outside and from within the development.
(2)
Impervious coverage. The impervious coverage
of the site shall not exceed 70%. For this development, impervious
coverage shall mean those items as defined in the Fair Lawn Zoning
Ordinance[1] and shall also include outdoor storage areas, decks, patios
and sidewalks.
(3)
Off-street loading. The requirements of the
Fair Lawn Zoning Ordinance regarding off-street loading shall not
be applicable to the development.
(5)
Off-street parking.
(a)
There shall be 2.2 off-street parking spaces
provided for each non-age-restricted unit in the development. However,
only one off-street parking space need be provided for each one-bedroom
age-restricted unit.
(b)
No more than 70 off-street parking spaces may
be located within the perimeter setback areas of the site. The parking
layout shall be subject to the review and approval of the Planning
Board.
(6)
Yard (fences). The prohibition contained in
the Fair Lawn Zoning Ordinance shall be modified so that landscaping
designed for screening or buffers may exceed six feet in height, as
requested by the developer and determined by the Planning Board in
connection with its site plan review of any development application
for the site.
G.
Expedited review; COAH amendments; power of Planning
Board.
(1)
The Borough shall provide for an expedited site plan review for the contemplated: development, as set forth herein. The developer may submit to the Planning Board a conceptual application for site plan review; provided, however, that any affirmative action or approval by the Planning Board shall be conditioned upon the Borough's obtaining substantive certification from COAH in accordance with Subsection H herein.
(2)
The Borough agrees to introduce and adopt the
amendments to its Zoning Ordinance within the time established by
COAH, but in no case later than 45 days from the date of substantive
certification.
(3)
Nothing in this section shall restrict or limit
the powers of the Planning Board of Fair Lawn in the discharge of
its statutory responsibilities, including its review of and granting
or denial of a development application for the site, under the Municipal
Land Use Law, the ordinances and codes of the Borough of Fair Lawn,
other state or federal regulatory requirements, or any other applicable
law.
H.
Substantive certification. This section shall not
become effective without the granting of substantive certification
by COAH of the HE/FSP of Fair Lawn, as previously submitted, except
as modified by COAH's recognition that the realistic development potential
for the Borough shall be based on the creation of 52 units of affordable
housing on the site and that the difference between the 52 affordable
units created and the up to 60 potential units on this site, earlier
projected in the Borough's HE/FSP and other submissions in connection
therewith, shall be the subject of a downward adjustment of Fair Lawn's
fair share obligation in connection with the granting of substantive
certification.
I.
Application by the developer. This section shall be
subject to the developer submitting a development application for
multifamily inclusionary development of the site to the Fair Lawn
Planning Board within nine months of the granting of substantive certification
and of the Borough's adoption and effective date of this section.
J.
Representation of ownership interest and involvement
in development. In connection with any development application for
the site, the developer and the applicant shall provide evidence of
their compliance with the terms of the mediation agreement entered
into by the Borough of Fair Lawn regarding this site that pertain
to representation of ownership and interest and involvement in development.
K.
Preliminary site plan review and approval process.
(1)
Preliminary site plans shall be submitted to
the Planning Board. These plans shall be submitted in accordance with
the existing codes and ordinances of the Borough of Fair Lawn, except
as modified herein. The site plan and other engineering documents
to be submitted may be submitted in tentative form for preliminary
and conceptual review.
(2)
Within 30 days following the submission of a
preliminary site plan, the Planning Board, through and including its
staff and consultants, shall provide the developer with a written
determination as to whether its application is complete. If the application
is considered incomplete, the developer and the applicant shall be
notified in writing within such thirty-day period as to the specific
additional materials required to complete the application.
(3)
If and whenever the application is deemed incomplete,
upon the submission of the additional required material, the Planning
Board, through and including its staff, shall determine and notify
the developer and the applicant within 10 days of the date that the
additional material is submitted as to whether its application is
complete.
(4)
Within 45 days from the date an application
is deemed complete, the Planning Board staff and other municipal agencies,
whose review of the site plan is required by law, ordinance, statute
or regulation, shall file their reports, if any, with the Planning
Board concerning the application. Within 15 days of the receipt of
all reports, the Planning Board shall publish a notice of a public
hearing to be held at the next regularly scheduled Planning Board
meeting. Such notice shall be published at the expense of the developer
and the applicant.
(5)
Preliminary approval. The Planning Board shall
grant, grant with conditions, or deny preliminary approval of a site
plan within 22 days of the date of the closing of the public hearing.
(6)
Applications for preliminary approval shall
be processed within the times set forth in the activity timetable
below:
|
Activity
|
Timetable
| ||
|---|---|---|---|
|
Application made to Planning Board
|
Date submitted
| ||
|
Planning Board staff provides developer with
written determination as to whether application is complete
|
30 days from date submitted
| ||
|
In the event that the Planning Board staff determines
the application to be incomplete, the Planning Board staff shall clearly
define what material will be required in order to deem the application
complete. Upon submission of this material, the Planning Board staff
shall provide developer with written determination as to whether the
application is complete
|
10 days from date additional material is submitted
| ||
|
Application is found to be complete by the Planning
Board staff
|
Date completed
| ||
|
Planning Board staff and agencies file their
reports with the Planning Board. All documentation is made available
to the public
|
45 days from date completed ("Receipt of Reports
Date")
| ||
|
Publication of notice of public hearing
|
Within 15 days of the Receipt of Reports Date
(“Publication Date”)
| ||
|
Planning Board holds public hearing
|
At the next regularly scheduled Planning Board
meeting
| ||
|
Planning Board grants preliminary approval
|
Within 22 days of the closing of the public
hearing
| ||
(7)
Final plan approval process. Applications for
final approval shall be processed within the time frame set forth
in the activity timetable below:
|
Activity
|
Timetable
|
|---|---|
|
Application made to Planning Board
|
Date submitted
|
|
Planning Board staff provides developer with
written determination as to whether application is complete
|
30 days from date submitted
|
|
Application is found to be complete by the Planning
Board staff
|
Date complete
|
|
Planning Board staff and agencies file their
reports with the Planning Board. All documentation is made available
to the public
|
45 days from date complete (“Receipt of
Reports Date”)
|
|
Publication of notice
|
Within 15 days of Receipt of Reports Date (“Publication
Date”)
|
|
Planning Board holds public hearing
|
At the next regularly scheduled Planning Board
meeting
|
|
Planning Board grants final approval
|
Within 22 days of receipt of all reports
|
(8)
The developer or the applicant may elect to
submit the final construction plans for all or sections of the development
of the site to the Fair Lawn Planning Board Engineer for his approval
before submission of final plan application so that site improvements
(excluding buildings) may begin before final approval. This approval
by the Planning Board Engineer shall take place within 30 days from
the date of submission of the construction plans.
(9)
Special meetings may be requested by the developer
or the applicant in connection with its development application. Upon
such request, the Planning Board shall schedule a reasonable number
of special meetings, but in no event fewer than two special meetings
per month, at the developer's or applicant's sole expense.
[Added 4-18-2005 by Ord. No. 2012-2005; amended 7-28-2020 by Ord. No. 2543-2020]
A.
Land. The land to which these zoning changes shall apply abuts the
east and west side of River Road between the intersections of Fair
Lawn Avenue and Berdan Avenue. These lands are designated as Blocks
5610, Lots 1.01, and 23 through 44.01; Block 5611, Lots 42 through
81; Block 5612, Lots 1 through 22, and 44 through 50; Block 5613,
Lots 1 through 17; Block 5616, Lot 1; Block 5626, Lot 1; Block 5628,
Lots 19, 20 and 22; Blocks 5724, Lots 1.02 through 6 and 15 through
20.01; Block 5717, Lots 12 through 17; Block 5718, Lots 10 through
19, 27, and 28; Block 5721, Lots 1 through 20 on the Official Tax
Map of the Borough (River Road Site). The area shall be designated
River Road Affordable Housing Overlay District on the Zoning Map of
the Borough of Fair Lawn.
B.
Permitted uses. Mixed-use buildings, comprised of any nonresidential
use(s) permitted in the B-4 and B-5 Zone Districts on the first floor
and residential uses on the second, third, and fourth floors, as applicable.
Residential uses shall not be permitted on the first floor.
C.
D.
There shall be an affordable housing set-aside for all mixed-use
development on the River Road site. Each such development shall include
a twenty-percent set-aside for affordable housing, if sales housing
is produced, or a fifteen-percent set-aside if rental housing is produced.
(1)
Inclusionary component. All affordable housing units in each residential
development in the River Road Overlay shall follow the requirements
as outlined in the Uniform Housing Affordability Controls at N.J.A.C.
5:80-26.1 et seq. to be divided equally between low- and moderate-income
units.
E.
Nothing in this section shall restrict or limit the powers of the
Planning Board of Fair Lawn and discharge of its statutory responsibilities,
including its review of and granting or denial of a development application
for the site, under the Municipal Land Use Law,[1] the ordinances and codes of the Borough of Fair Lawn,
other state or federal regulatory requirements, or any other applicable
law.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[Added 4-18-2005 by Ord. No. 2013-2005]
A.
Land. The land to which these zoning changes shall
apply is approximately 1.6 acres in size, located in between River
Road, Maple Avenue, and Lake Street, situated in the I-2 Industrial
District, and is the westerly part of the land designated as Block
5834, Lot 1 on the official tax map of the Borough. The Hadco Site
shall be designated as the I-2-OR, Industrial Overlay Residential
District on the Zoning Map of the Borough of Fair Lawn.
B.
Zoning. In addition to the I-2 Industrial zoning on the Hadco Site, the land may also be developed, consistent with the requirements of the R-5-3 Inclusionary Townhouse Residential Zone, as set forth in § 125-15.1 of the Code of the Borough of Fair Lawn 2000 and applicable to remaining easterly part of Block 5834, Lot 1.
C.
Nothing in this section shall restrict or limit the
powers of the Planning Board of Fair Lawn in the discharge of its
statutory responsibilities, including its review of and granting or
denial of a development application for the site, under the Municipal
Land Use Law, the ordinances and codes of the Borough of Fair Lawn,
other state or federal regulatory requirements, or any other applicable
law.
[Added 9-6-2005 by Ord. No. 2025-2005; amended 2-23-2010 by Ord. No.
2179-2010]
A.
The land to which this district applies includes Block 3610, Lots
1 and 2; Block 3609, Lot 1, in the Borough of Fair Lawn. Projects
in this zoning district shall be considered prior-round (1986-1999)
inclusionary residential projects.
B.
The purpose of the R-6 Inclusionary Multifamily Residential Zone
is to implement the provisions of the Interlocutory Order of the Superior
Court of New Jersey, granting a Builder's Remedy and Other Forms of
Relief, entered by the Honorable Jonathan N. Harris, J.S.C. on July
29, 2009, by permitting the development of the Landmark Site (Block
3610, Lot 1; Block 3610, Lot 2; and Block 3609, Lot 1) substantially
in compliance with Exhibit P15 ("The Landmark Plan," dated March 15,
2006) and Exhibit P4, including rendered building elevations, which
were submitted to the Court as part of the document entitled "Planning
Report: Builders [sic] Remedy Assessment and R-1-1 Zoning Analysis
in the Matter of: Landmark at Radburn, LLC, et al v. Borough of Fair
Lawn, et al. Docket Number BER-L-8226-07, dated October 30, 2008."
The builder's remedy was ordered to allow a maximum of 200 total dwelling
units, including a set-aside of affordable units equal to 20% of the
total number of dwelling units constructed on the Landmark Site.
C.
The residential set-aside shall be a whole number and shall be rounded
up in all cases.
D.
Units shall be created on site. The location and bedroom distribution
of the affordable units shall be indicated on the architectural floor
plans.
E.
Inclusionary sites shall comply with Chapter 49 of the Borough Code, entitled "Affordable Housing." The affordable units shall be designed, constructed and sold/leased in a manner that makes them eligible for crediting pursuant to COAH’s rules governing including but not limited to low- and moderate-income split, bedroom distribution, phasing, deed restrictions and marketing. They shall be integrated into the overall project with the market-rate units to the extent feasible. The income distribution pursuant to COAH’s rules and the New Jersey Fair Housing Act[1] shall be at least 50% low-income units and no more than
50% moderate-income units.
[Amended 9-7-2010 by Ord. No. 2193-2010]
[1]
Editor’s Note: See N.J.S.A. 52:27D-301 et seq.
F.
HABITABLE ATTIC
MEZZANINE
Supplemental definitions. As used in this section, the following
terms shall have the meanings indicated:
A finished or unfinished area not considered a story which
occupies at least 70 square feet in area which area shall have an
average ceiling height of at least seven feet and is enclosed by knee
walls on the sides (if applicable), the roof assembly above and the
floor-ceiling assembly below.
An intermediate level of a building story that is located
between the uppermost story's floor and the roof or uppermost ceiling,
which has an aggregate floor area of not more than one-third of the
area of the story in which it is located.
G.
Zoning criteria:
(1)
(2)
Permitted accessory uses and structures: uses which are customarily
incidental to the principal use, excluding detached garages and sheds.
(3)
Zoning standards: The zoning ordinance intends for the site to be
developed as one cohesive project.
(a)
Minimum tract area: 10 acres.
(b)
Maximum number of residential units: 200.
(c)
Maximum number of building stories and height:
[1]
Four residential stories plus mezzanine/57 feet. Buildings that
contain ceiling heights of less than nine feet and have a roof pitch
of less than 8:12 shall be a maximum of 52.5 feet.
[2]
When a building is within 200 feet of an existing adjacent single-family
dwelling: three residential stories plus habitable attic or mezzanine/40
feet shall be the maximum building height.
[3]
The height of a building containing more than one horizontal
segment or leg and more than three residential stories shall be measured
individually for each segment. An average shall be taken of the vertical
distance from a point in the center of the street opposite of the
building wall fronting said street to the mean height of a gable or
hip roof at each end of the segment. Where a rear or side building
facade also faces a street, the segment ends shall be comprised of
the two points that are closest to the street, and at least 100 feet
apart. Each segment, as measured above, shall comply with the building
height requirement.
(d)
Minimum building setback from Plaza Road and Cooper's Way:
[1]
Buildings taller than 40 feet shall be set back at least 35
feet from the Cooper's Way property line and a minimum of 40 feet
and an average of 45 feet from the cartway of Plaza Road;
[2]
Buildings 40 feet or less in height may be set back no less
than 30 feet from the cartway of Plaza Road and 35 feet from the Cooper's
Way property line.
(e)
Minimum building setback from internal roadways: Buildings taller
than 40 feet shall be set back at least 20 feet from the face of curb;
buildings 40 feet or less in height may be set back no less than 10
feet. Porte-cocheres on internal roadways may be located at the edge
of pavement.
(f)
In order to encourage variety in building facades, an eight-foot
encroachment shall be permitted by first-floor unenclosed rear and
front porches, stoops, stairs and balconies into all required yard
areas, and bay windows and cornices shall be permitted to encroach
five feet, where the encroachment comprises less than 50% of the facade.
(g)
Minimum building setback from adjacent single-family residential
lot lines: 30 feet.
(h)
Minimum building setback from all other property lines: 20 feet.
(i)
Maximum building coverage: 35% (calculated on Block 3610, Lots
1 and 2) (including a maximum total deck coverage of 5%).
(j)
Maximum impervious coverage: 70% (calculated on Block 3610,
Lots 1 and 2).
(k)
Block 3609, Lot 1 may contain a maximum 15% total impervious
coverage including 5% accessory building coverage.
(l)
Minimum separation between buildings: 30 feet.
(m)
Maximum number of residential units per building: 124 units
may be located in one building; all other buildings shall contain
30 or fewer units.
(n)
Maximum accessory building or structure height: 16 feet/one
story, except that one-open air pavilion may be provided with a maximum
height of 35 feet to the ridge.
(o)
Accessory building setbacks: Accessory buildings shall comply
with the tract perimeter setback requirements for principal buildings.
(p)
Block 3609, Lot 1 (Archery Plaza), may contain an accessory
structure without containing a principal structure.
(q)
Front-loaded garages shall not extend more than seven feet from
the building face. Minimum front yard setback for units with front-loaded
garages shall be 20 feet from the street edge of pavement.
[Amended 9-7-2010 by Ord. No. 2193-2010]
(r)
Substantial evergreen trees including Colorado spruce, Norway
spruce, Douglas fir, Leyland cypress or comparable species shall be
planted along all property lines that directly abut single-family
residential uses to screen proposed buildings and parking, and shall
also be utilized to screen any solid building walls greater than 40
feet in height from residences across the railroad tracks and from
Route 208. A maximum 20% of the evergreen tree stock may be Eastern
White Pine. Trees shall be installed eight to 10 feet in height, 10
feet on center. Where space provides, deciduous trees with canopies
shall be provided between the evergreen tree buffer and buildings
or parking areas, 50 feet on center, to create additional screening
from upper stories. A fence along this property line may also be required
by the Board.
(s)
Off-street parking areas and driveways shall be set back at
least 10 feet from all property lines that abut a side property line
of a single-family residential use, and shall be set back at least
20 feet from all property lines that abut a rear property line of
a single-family residence. Head-in parking shall not face adjacent
single-family residential uses.
(t)
Signs.
[1]
One project identification sign shall be permitted as well as
one sign identifying the Radburn community, the combined total of
which shall not exceed 45 square feet.
[2]
The Radburn community sign shall be located at the intersection
of Plaza Road and Cooper's Way. The Radburn community sign shall be
mounted on a brick or stone wall not exceeding six feet in height
and may be externally illuminated. The base of the sign should be
suitably landscaped.
[3]
The project identification sign may be located at one of the
site's entrance points. The sign may be externally illuminated and
should be mounted on a brick or stone wall or monument, which shall
not exceed seven feet in height. The sign shall be set back at least
20 feet from the Plaza Road cartway, shall not be located in a required
sight triangle. The base of the sign should be suitably landscaped.
[4]
Sign area.
[a]
Area to be included. The supporting structure or
bracing of a sign shall be omitted in measuring the area of the sign
unless such structure or bracing is made part of the message or sign
face. Where a sign has two faces back-to-back and parallel to each
other, the area of only one face shall be included in determining
the area of the sign.
[b]
The area of all signs with backing shall be measured
by computing the surface area of the sign backing.
[c]
The area of all signs without backing shall be
measured by computing the area of the smallest geometric figure or
figures which can encompass all words, letters, figures, emblems and
other elements of the sign message.
H.
The New Jersey Residential Site Improvement Standards shall govern and shall supersede applicable sections of Chapter 125. Deviations from the Residential Site Improvement Standards are to be done in accordance with N.J.A.C. 5:21-3.
J.
The location of and/or the need for relocation of any existing utility
or other easements shall not be a valid impediment to approval by
the Board, provided that the legitimate public interests pertaining
thereto are provided for in any such relocation. Further, the Board
shall cooperate with the governing body or other empowered entity
to facilitate the relocation, at the applicant's expense, of any such
easements and/or the improvements located in such easements.
K.
In its review of requested variances or waivers, the Board shall
consider the requirements of the New Jersey Council on Affordable
Housing's rules at N.J.A.C. 5:97-10.3 and other applicable sections
pertaining to development application procedures.
L.
No studies related to fiscal or economic effects of the project shall
be required.
M.
Any subdivision of land in order to create smaller parcels for conveyance,
including, but not limited to, fee simple townhouses, residential
or other lots, shall provide access to such lots from either a public
way or a private way subject to a homeowners' association, and shall
have a minimum lot width of 16 feet and a minimum depth of 50 feet.
N.
Supplemental design standards. Where provisions herein conflict with other provisions of Chapter 125, Land Development, this section shall supersede. Deviations from these standards may be granted via design waiver. Ordinance No. 2177-2010, "General Design Standards for Commercial, Mixed-Use and Multifamily Residential Development," and Ordinance No. 2178-2010, "Supplemental Standards for Planned Development," shall not apply.
[Amended 9-7-2010 by Ord. No. 2193-2010]
(1)
Off-street parking may be located at grade, below grade and underneath
buildings. Parking beneath buildings shall be enclosed and finished
in appearance and shall contain fenestration where appropriate to
avoid large expanses of blank facade. Below-grade parking and parking
under buildings shall not result in a building that appears from any
street to be set on piers. Off-street surface parking shall not be
permitted between the building and Plaza Road, shall not be visible
from Plaza Road and shall be screened with a year-round vegetative
screen along Cooper's Way as well as along abutting single-family
residential property lines.
(2)
In no case shall any finished floor elevation exceed 72 inches from
the street center-line grade. Where finished floor elevation exceeds
48 inches from the street center-line grade, the building facade shall
be treated with fenestration or other decorative treatment and landscaping
where appropriate for the purpose of minimizing large expanses of
blank wall. Exposed walls on building segments with finished floor
elevations of less than 48 inches shall be effectively screened with
foundation plantings.
(3)
A ten-foot-wide green space shall be provided between buildings and
parking lots to provide for vehicle overhang and landscaping. Additional
width shall be provided in areas where pedestrian access is provided.
(4)
The site plans shall demonstrate the provision of adequate areas
for the storage and collection of trash and recyclables. If trash
and recyclables are to be stored inside units, adequate space shall
be indicated on the floor plans. If common trash areas are to be provided,
a detail of the area shall be provided on the plans. Trash enclosures
shall be properly sized for the number of units served and shall be
surrounded on three sides by a masonry enclosure at least six feet
high, finished to match the principal buildings.
(5)
No more than two curb cuts consisting of an ingress/egress shall
be allowed on Plaza Road. Individual driveways shall not be permitted
onto Plaza Road.
(6)
Internal roadways shall be maintained as private roads unless accepted
by the Borough in accordance with N.J.S.A. 40:67-23.7.
(7)
Off-tract improvements for the project's impacts shall be governed
by applicable law.
(8)
Areas on site that do not contain buildings, parking areas, roadways
or driveways should be designed as open space areas for the enjoyment
of the private community and should be contiguous where possible to
increase usability. Open space including but not limited to active
play areas, walking paths and similar amenities shall be provided
totaling no less than 15,000 square feet in area. Such amenities may
be located on Block 3610, Lots 1 and 2, and Block 3609, Lot 1.
(9)
Due to the significant number of dwelling units permitted, a children's
play area for the private community shall be provided at the rate
of 2,000 square feet or 10 square feet per residential unit, whichever
is more. The play area shall contain no fewer than four pieces of
equipment; an alternate layout may be approved by the Board. The play
area shall comply with the New Jersey Barrier Free Subcode and the
New Jersey Public Playground Safety Subcode. Additional parking spaces
shall not be required for the children's play area. Such amenities
as are provided pursuant to this provision shall not be counted as
impervious coverage.
(10)
At least 50% of all parking areas shall be shaded at tree maturity.
Shade tree species shall be utilized. The perimeter of the parking
area shall be fully landscaped and screened from residences.
(11)
All areas not covered by buildings, streets, parking areas or
sidewalks shall be landscaped with material that is suitable for the
location and function of land.
(12)
Existing mature street trees shall be identified on the site
plans.
(13)
The existing mature street trees along Plaza Road should be
preserved, in which case the current sidewalk location may be maintained.
If it is not feasible to preserve the trees, then a five-foot-wide
planting strip shall be located between the curb and a four-foot-wide
sidewalk, wherein street trees shall be planted 40 feet on center.
(14)
Sidewalk no less than four feet wide shall be provided along
Cooper's Way, the interior tract roadways and throughout the tract.
Along the Cooper's Way frontage, a two-foot-wide grass strip shall
be provided between the curb and the sidewalk. The existing mature
street trees shall be preserved.
(15)
Any proposed rear decks or patios shall be indicated on the
site or subdivision plans as well the architectural floor plans.
(16)
In order to increase the effectiveness and usability of proposed
open space and recreation areas, such areas shall be contiguous where
feasible.
(17)
A clear pedestrian connection shall be provided from the residential
units to the Radburn train station across Block 3609, Lot 1.
(18)
Architectural floor plans and building elevations, prepared
by a licensed architect under seal, shall be submitted with the site
plans. The floor plans shall indicate the number of bedrooms per dwelling
unit.
(19)
Although a common design theme is not to be discouraged, buildings
should be differentiated to avoid monotony and to minimize the appearance
of building mass.
(20)
The facades of buildings facing Plaza Road and Cooper's Way
shall be designed to appear as front facades, and building entrances
shall be provided on Plaza Road. The rear of buildings and garages
shall not face Plaza Road.
(21)
Buildings shall be designed to have an attractive, finished
appearance from all public spaces, streets and adjacent residential
uses. The architectural treatment of a facade or roof shall be completely
continued around all visibly exposed sides of a building. Building
facades abutting or facing the railroad right-of-way may be solid
walls without fenestration; the color and finish material of the wall
shall complement the colors and materials used on the building facades
that do not abut the railroad right-of-way, but shall not be required
to be the same as the facades that do not abut the railroad right-of-way.
(22)
The colors of all buildings, pavements, awnings, signage, site
amenities and other structures should be warm, muted tones. Building
and trim accent areas may feature brighter colors.
(23)
Building facades, porch and entry posts, windows and window
panes should respect traditional architectural proportions such as
the Golden Rectangle.
(24)
Porches shall provide porch beams above piers or posts.
(25)
Building facades should be articulated vertically as well as
horizontally where appropriate to reduce the scale and uniformity
of large-scale buildings. Street side building facades should be designed
to reflect the Radburn community's identity, character and scale.
The buildings should feature pitched roofs with dormers, as well as
changes in roof plane. Facade and roof designs shall be similar in
concept but not required to be the same as Exhibits P15 ("The Landmark
Plan," dated March 15, 2006) and Figures 20, 22 and 24 in Exhibit
P4 which were submitted to the Court as part of the document entitled
"Planning Report: Builders [sic] Remedy Assessment and R-1-1 Zoning
Analysis in the Matter of: Landmark at Radburn, LLC, et al v. Borough
of Fair Lawn, et al. Docket Number BER-L-8226-07, dated October 30,
2008."
(26)
Materials on facades fronting on Plaza Road and to a depth of
at least 100 feet off of Plaza Road and Cooper's Way shall be high
quality and may include but not be limited to brick, natural stone,
stucco, EIFS, fiber cement or wood composite. Trim materials may include
but not be limited to wood, wood composite, natural stone, brick,
cellular PVC or fiberglass.
(27)
Building fronts shall be arranged so that front facades generally
face front facades.
(28)
Roofs.
(a)
Box-like shapes should be avoided.
(b)
Architectural embellishments that add visual interest to roofs,
including but not limited to dormers, belvederes, masonry chimneys,
cupolas and such similar elements should be utilized, provided that
such are architecturally compatible with the style, materials, colors
and details of the building and they comply with the building height
standards.
(c)
The minimum permitted roof pitch shall be 6:12; a 4:12 roof
pitch may be permitted for shed dormers.
(29)
Where building entrances are planned along Plaza Road, they
shall be separated from the sidewalk by a low hedge and/or tubular
aluminum picket-style or similar fence to create separation and privacy
(see Detail #1 Plaza Road Streetscape).
|
Detail #1 Plaza Road Streetscape
|
 |
(30)
Mechanisms to control outdoor clutter and to handle storage
of bicycles, grills and other outdoor equipment shall be provided.
(31)
Ganged mailboxes shall be located where safe pedestrian and
vehicular access can be provided.
(32)
All exterior yard areas shall be maintained by a homeowners'
association, management company, or similar common entity, not individual
property owners.
[Amended 9-7-2010 by Ord. No. 2193-2010]
(34)
A stormwater basin may be located in the southwestern corner
of the site, and shall not be permitted between the building and Plaza
Road.
(35)
Site lighting shall facilitate access to buildings from the
street, sidewalk or parking areas without creating nuisance glare,
sky light or consuming too much electricity. Full cut-off fixtures
and house-side shields should be utilized. Light poles and fixtures
should enhance site aesthetics, and light pole footings shall be installed
flush with grade.
(36)
Retaining walls should not exceed six feet in height. Where
total wall height is required to be greater than six feet, terracing
shall be used between walls at a width equal to the height of the
tallest wall. The terraced area shall be landscaped with low-maintenance
plant material that will grow to at least the height of the wall.
The wall shall be faced with durable material that coordinates with
the principal building facade materials.
O.
Any site plan shall provide mapping of areas that are undergoing
soil remediation, areas that are to be capped and the location of
any building to contain remediation equipment.
P.
The application and plan set shall be sent to the Borough Health
Officer and Borough Environmental Commission for review and comment
on applicable items.
Q.
Soil and groundwater contamination shall be remediated to allow for
the proposed use in accordance with NJDEP requirements.
R.
[2]Informal plan review recommended.
(1)
It is strongly recommended that the applicant appear before the Board
for informal review of a refined concept plan for the project prior
to the submission of any site plan application.
(2)
The refined concept plan should indicate the location of required
roadways, parking areas, pedestrian paths, open space and recreation
areas, buildings, driveways and other site improvements. The number
of proposed units, unit types and orientation of buildings should
also be provided, as well as architectural sketches of proposed buildings.
[2]
Editor’s Note: Former Subsection R, which stated that Board approval would be subject to all outside agency approvals, including New Jersey State Historic Preservation Office review and recommendation, was repealed 9-7-2010 by Ord. No. 2193-2010. This ordinance also provided for the redesignation of former Subsections S and T as Subsections R and S, respectively.
S.
Nothing in this section shall restrict or limit the powers of the
Planning Board of Fair Lawn and discharge of its statutory responsibilities,
including its review of and granting or denial of a development application
for the site, under the Municipal Land Use Law,[3] the ordinances and codes of the Borough of Fair Lawn,
other state or federal regulatory requirements, or any other applicable
law.
[3]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[Added 6-16-2015 by Ord.
No. 2354-2015; and 8-16-2016 by Ord. No. 2400-2016]
This section incorporates the redevelopment plan for the property[1] (which is on file in the Municipal Clerk's office) into
the Code by reference.
[1]
Editor's Note: The "property" refers to Block 5834, Lot 1.02,
known as the rear portion of the KEM property.
[Added 2-10-2009 by Ord. No. 2137-2009]
A.
Land. The land to which this increase in density and the addition
of affordable housing zoning changes shall apply includes Block 5723,
Lots 1, 3 and 5 in the Borough of Fair Lawn.
[Amended 2-16-2010 by Ord. No. 2174-2010[1]]
[1]
Editor's Note: This ordinance also rezoned Block 5723, Lot
7, previously part of the B-4 with Affordable Housing Component Overlay
District, to the B-4 District.
B.
Zoning. In addition to the B-4 River Road Business District zoning,
there shall be an affordable housing set-aside for each residential
development developed at a density of eight units or more per gross
acre. Each such development shall include a set-aside of 25% of total
units for affordable housing if sales housing is produced or a set-aside
of 20% if rental housing is produced.
C.
Incentives. Incentives to create the affordable housing include the
following:
(1)
A set-aside of 13% of very-low-income units shall not be required.
A split of 50% low-income and 50% moderate-income shall be required.
(2)
No affordable units shall be required if the required set-aside is
less than one whole unit.
(3)
The residential set-aside shall be rounded down if it is 0.4 (4/10)
or less.
(4)
Applicants may receive a bonus for nonresidential square footage
that is demolished, if it was occupied within one year of the date
it is to be demolished, if the structure is not considered historically
significant, i.e., eligible for inclusion in the State Register of
Historic Places. The applicant may reduce the required set-aside of
residential units by the number of jobs lost from the demolished building
per an application of COAH's nonresidential multipliers located in
Appendix D, divided by 16. For example, if an office that is 6,000
square feet is to be demolished, 1.05 units may be subtracted from
the required residential set-aside:
|
6,000 /1,000 = 6
| |
|
6 x 2.8 = 16.8
| |
|
16.8 / 16 = 1.05
|
(5)
Permitted building height shall be increased from 33 feet to 35 feet,
however, it shall remain at three stories in height.
(6)
Maximum building coverage shall be increased to 10% more than what
is permitted by ordinance. There is no floor-area ratio requirement.
(7)
Affordable units may be constructed off site, within the Borough,
if the alternative location and arrangement is deemed feasible by
the Board.
(8)
Residential parking standards shall be consistent with the residential
site improvements standards for "garden apartment."
(9)
Up to 25% of on-site parking provided may be located in a side yard.
(10)
Underground parking may be provided.
D.
The affordable units shall be designed, constructed and sold/leased
in a manner that makes them eligible for crediting pursuant to COAH's
rules governing, including but not limited to low- and moderate-income
split, bedroom distribution, phasing, deed restrictions and marketing.
E.
Nothing in this section shall restrict or limit the powers of the
Planning Board of Fair Lawn and discharge of its statutory responsibilities,
including its review of and granting or denial of a development application
for the site, under the Municipal Land Use Law,[2] the ordinances and Code of the Borough of Fair Lawn, other
state or federal regulatory requirements or any other applicable law.
[2]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[1]
Editor's Note: Former § 49-16, R-5-4 Inclusionary
Multifamily Residential Planned Development District, added 2-16-2010
by Ord. No. 2173-2010, as amended, was repealed 6-28-2022 by Ord.
No. 2625-2022.
[Added 2-16-2010 by Ord. No. 2172-2010]
A.
Land. The land to which this district applies includes Block 4801,
Lot 1, in the Borough of Fair Lawn.
B.
Zoning. There shall be an affordable housing set-aside for each residential
development developed at a density of eight units or more per gross
acre. Each such development shall include a twenty-five-percent set-aside
of total units for affordable housing unless bonus options offered
herein are exercised, which require higher set-asides.
C.
A thirteen-percent very-low-, a thirty-seven-percent low-, and a
fifty-percent moderate-income split shall be required.
D.
No affordable units shall be required if the project's growth share
per COAH's rules is less than one whole unit.
E.
The residential set-aside shall be a whole number and shall be rounded
up in all cases except when the obligation is less than one whole
unit.
F.
Affordable units may be constructed on site or a payment in lieu made to the Borough's Affordable Housing Trust Fund in accordance with § 49-2C(3).
[Amended 1-29-2013 by Ord. No. 2262-2013]
G.
Inclusionary sites shall comply with Chapter 49 of the Borough Code, entitled "Affordable Housing." The affordable units shall be designed, constructed and sold/leased in a manner that makes them eligible for crediting pursuant to COAH's rules governing including but not limited to low- and moderate-income split, bedroom distribution, phasing, deed restrictions and marketing. They shall be integrated into the overall project with the market-rate units to the extent feasible.
H.
Incentives. Incentives to create the affordable housing include the
following:
(1)
Residential uses shall be permitted whereas they are not currently
permitted.
(2)
Retail uses shall be permitted whereas they are currently not permitted.
(3)
Mixed-use development shall be permitted whereas it is currently
not permitted.
(4)
Opportunities for increased building height have been provided.
(5)
Underground parking may be provided if structurally feasible, and
parking beneath structures shall be permitted, also if structurally
feasible.
(6)
Shared parking between compatible uses may be permitted if found
practicable by the Board.
(7)
Residential uses may utilize the Residential Site Improvement Standards
to determine the residential parking requirement with regard to number
of parking spaces.
I.
Nonresidential developers' fees shall be required on the permitted
base floor area ratio (up to 0.18).
J.
Zoning criteria:
(1)
An inclusionary residential component shall be required, except where a payment in lieu of constructing units on site is proposed and approved by the Board. Payments in lieu shall comply with the requirements at § 49-2C(3).
[Amended 1-29-2013 by Ord. No. 2262-2013]
(2)
Permitted principal uses include a mix of uses comprised of the following:
(c)
Retail trade including: retail establishments; personal services;
showroom sales intended for display of merchandise, excluding motorized
vehicle sales and services.
(d)
Services/recreation/entertainment uses including: health and
fitness centers and spas; day-care facilities, including child-care
and adult-care; bakeries; delicatessens; restaurants, excluding all
restaurants with drive-throughs; catering facilities; theaters for
the performing arts; professional studios for dance, music, art and
photography; art galleries and libraries; commercial schools; animal
hospitals.
(e)
Office and related business services including: executive, professional
and administrative activities; financial institutions; computer and
data processing and storage centers; business service and service
establishments.
(f)
Health services including: nursing homes; physical and mental
health rehabilitation centers; and medical office.
(g)
Public uses including: public parks and recreation facilities
and government buildings and uses.
(3)
Permitted conditional uses.
(a)
Hotel/conference center. Hotel/conference center shall be permitted
provided the facility has a minimum 100 rooms, minimum 3,000 square
foot of conference space, and a minimum height of four stories (maximum
eight stories), which may include residential or nonresidential space
related or unrelated to the hotel. Each story above four shall be
allowed 10.5 feet in additional building height. Buildings more than
four stories in height shall provide a seventy-five-foot side yard
setback, a seventy-five-foot setback from Pollitt Drive and a two-hundred-foot
setback from Route 208.
(b)
(Reserved)
(4)
Accessory uses: Accessory uses which are customarily incidental to
the principal use, including outdoor dining, shall be permitted.
(5)
Bulk standards: The zoning ordinance intends for the site to be developed
as one cohesive project.
(a)
Minimum lot area: nine acres.
(b)
Minimum lot width: 400 feet.
(c)
Minimum lot depth: 300 feet.
(d)
Maximum building height: three stories except as otherwise permitted
herein.
(e)
Maximum building coverage: 30% if surface parking is provided;
40% if structured parking is provided.
(f)
Maximum total impervious coverage: 75%.
(g)
Fourth building stories. Fourth stories shall be considered
bonus stories and shall be permitted for all permitted uses provided
that the building adheres to required building setbacks and that open
space or public gathering area is provided on site at a rate of 0.5
square feet for every one square foot of bonus fourth-story gross
floor area created.
(h)
Not more than 50% of the total amount of floor area proposed
for the first and second floors of all buildings on the entire site
shall be used for residential dwelling purposes. At least one residential
unit shall be provided for every 1,000 square feet of nonresidential
space created up to the residential caps stipulated herein.
(j)
At least 50% of floor area within 100 feet of Route 208 shall
be office in use.
(k)
Building height and setbacks shall comply with the following
schedule:
|
Building Height & Setback Schedule
| |||
|---|---|---|---|
|
Building Height
|
Required Setbacks
| ||
|
Side Yard
|
From Pollitt Drive
|
From Route 208
| |
|
1 story / 25 feet
|
25 feet
|
35 feet
|
65 feet
|
|
2 stories / 35 feet
|
25 feet
|
35 feet
|
65 feet
|
|
3 stories / 40 feet*
|
40 feet
|
50 feet
|
65 feet
|
|
4 stories / 55 feet**
|
60 feet
|
75 feet
|
200 feet
|
|
*Up to 35% of the linear frontage of Pollitt Drive or the linear
length of a side property line may be occupied by a three-story building
that has a setback of 35 feet to 50 feet.
|
|
** Up to 35% of the side yard or the linear frontage of Pollitt
Drive may be occupied by a four-story building that has a setback
between 50 feet and 75 feet.
|
(6)
Residential density, floor area ratios and affordable housing set-asides
shall comply with one of the following options:
|
Residential Density, Nonresidential FAR and Affordable
Housing Set-Asides Schedule
| ||||
|---|---|---|---|---|
|
Option #
|
Base Residential Density
(in units per acre)
|
Maximum Nonresidential Floor Area Ratio
|
Required Affordable Housing Set-Aside
|
Family Rental Requirement
|
|
A
|
8 du/acre or 80 total units, whichever is less
|
0.18
|
25%
|
None
|
|
B
|
15 du/acre, or 150 total units, whichever is less
|
0.18
|
25%
|
75% of affordable units
|
|
C
|
15 du/acre, or 150 total units, whichever is less
|
0.22
|
27%
|
50% of affordable units
|
|
D
|
15 du/acre, or 150 total units, whichever is less
|
0.23*
|
27%
|
50% of affordable units
|
|
*0.02 additional FAR shall be permitted for every additional
one-percent increase in affordable housing set-aside.
|
(7)
In order to encourage variety in building facades, a five-foot encroachment
shall be permitted by roof overhangs, unenclosed porches, stoops,
stairs and balconies into all required yard areas where the encroachment
comprises less than 50% of the facade.
(8)
Underground parking may be provided if structurally feasible, and
parking beneath structures shall be permitted, also if structurally
feasible. Below-grade parking shall be finished in appearance from
all exterior viewsheds and shall not result in a building that appears
from any street to be set on piers. Above-grade parking shall be permitted
only if it is located wholly behind a building and/or is not visible
from any public street. In no case shall any parking layout result
in a residential finished floor elevation of more than 48 inches above
grade.
M.
Any site plan shall provide mapping of areas that are undergoing
soil remediation, areas that are to be capped and the location of
any building to contain remediation equipment. The application and
plan set shall be sent to the Borough Health Officer and Environmental
Commission for review and comment on applicable items.
N.
Soil and groundwater contamination shall be remediated to allow for
the proposed use in accordance with NJDEP requirements.
O.
Supplemental design standards. Deviations from these standards shall
be granted via design waiver.
(2)
Buildings shall be oriented toward the state highway. The primary
entrance to the buildings does not have to face the state highway;
however, the facades shall be designed to appear as front facades.
(3)
Residential uses may utilize the Residential Site Improvement Standards
to determine the residential parking requirement with regard to number
of parking spaces.
(4)
No more than one point of ingress/egress shall be allowed on Route
208.
(5)
The applicant should seek approval from NJDOT for the installation
of acceleration and deceleration lanes on Route 208.
(6)
A roadway or access driveway connection from Route 208 to Pollitt
Drive should be made. Pollitt Drive Extension may need to be slightly
modified/squared off to facilitate this connection.
(7)
Croucher Lane should be maintained as a private road, and connections
should be limited to providing access primarily to residents of Fair
Lawn Commons.
(8)
If acceptable to the owner of Fair Lawn Commons, the stop signs along
Croucher Lane should be reoriented to face the parking lots to facilitate
circulation in this area.
(9)
A sidewalk connection between Pollitt Drive and Chandler Drive across
Block 4702, Lot 2 should be provided to the extent feasible. There
is already an easement in this area that could potentially be utilized,
otherwise a new easement could be established by the Borough. This
sidewalk easement will facilitate pedestrian traffic from the area
to Radburn train station.
(10)
An area for a bus pull-out, including a bus shelter, should
be provided on Pollitt Drive. Fair Lawn currently provides mini-bus
service to municipal residents.
(11)
An open space/gathering area should be provided for the residential
component. The open space area should be at least 3% of total site
area and may include outdoor dining areas. Open space may include
hard-surfaced plaza or gathering areas. This standard shall be exclusive
of the open space requirements related to bonus floors.
(12)
Rooftop spaces are permitted to meet the open space and public
gathering area requirement for bonus floors if improved for public
access with appropriate surfacing such as gravel, decking or similar
material.
(13)
Existing mature trees greater than five inches diameter at breast
height that are in good condition shall be identified on the site
plan and preserved to the extent feasible.
P.
The affordable units shall be designed, constructed and sold/leased
in a manner that makes them eligible for crediting pursuant to COAH's
rules governing including but not limited to low- and moderate-income
split, bedroom distribution, phasing, deed restrictions and marketing.
They shall be integrated into the overall project with the market-rate
units to the extent feasible.
[Added 2-16-2010 by Ord. No. 2175-2010]
A.
Purpose.
(1)
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550
(1990), the New Jersey Supreme Court determined that mandatory development
fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A.
52:27d-301 et seq., and the State Constitution, subject to the Council
on Affordable Housing's (COAH's) adoption of rules.
(2)
Pursuant to P.L. 2008, c. 46 section 8 (N.J.S.A. 52:27D-329.2), and
the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 40:55D-8.7),[1] COAH is authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that are under the jurisdiction of
the Council or court of competent jurisdiction and have a COAH-approved
spending plan may retain fees collected from nonresidential development.
[1]
Editor's Note: Pursuant to the New Jersey Economic Stimulus
Act of 2009, the Non-Residential Development Fee Act, which was signed
into law on 7-17-2008, was suspended. For applicable development fees,
consult the Borough offices.
(3)
This section establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance P.L. 2008, c. 46, §§ 8 and 32 through
38. Fees collected pursuant to this section shall be used for the
sole purpose of providing low- and moderate-income housing. This section
shall be interpreted within the framework of COAH's rules on development
fees, codified at N.J.A.C. 5:97-8.
B.
Basic requirements.
C.
AFFORDABLE HOUSING DEVELOPMENT
COAH or THE COUNCIL
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
Definitions. The following terms, as used in this section, shall
have the following meanings:
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.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with §§ 1,
5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through c).
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
D.
Residential development fees.
(1)
Imposed fees.
(a)
Within all 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 for each additional unit 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% 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 is demolished and replaced, except in the case of destruction
by fire or natural disaster.
(d)
Developers of inclusionary developments shall be exempt from
paying a development fee.
(3)
Collection procedures for residential development.
(4)
Appeal of residential development fees. 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 Borough of Fair Lawn. 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.
E.
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% percent 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 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 two-and-a-half-percent development
fee, unless otherwise exempted below.
(b)
The two-and-a-half-percent fee 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 the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to P.L. 2008, c. 46, as specified in the 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 P.L. 2008, c. 46, shall
be subject to it at such time 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 Borough of Fair Lawn as a lien against the
real property of the owner.
(3)
Collection procedures for nonresidential development.
(a)
The developer of a nonresidential development shall obtain a
Form N-RDF, State of New Jersey Nonresidential Development Certification/Exemption,
and complete as per the instructions provided. The construction official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
(b)
The construction official responsible for the issuance of a
building permit shall notify the local tax assessor of the issuance
of the first building permit for a development which is subject to
a nonresidential development fee.
(c)
Within 90 days of receipt of that notice, the municipal tax
assessor, based on the plans filed, shall provide an estimate of the
equalized assessed value of the nonresidential development.
(d)
The construction official responsible for the issuance of a
final certificate of occupancy notifies the local assessor of any
and all requests for the scheduling of a final inspection on property
which is subject to a nonresidential development fee.
(e)
Within 10 business days of a request for the scheduling of a
final inspection, the municipal assessor shall confirm or modify the
previously estimated equalized assessed value of the improvements
of the nonresidential development; calculate the nonresidential development
fee; and thereafter notify the developer of the amount of the fee.
(f)
Should the Borough of Fair Lawn fail to determine or notify
the developer of the amount of the nonresidential 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 subsection b of § 37
of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
(g)
The developer shall pay 100% of the calculated development fee
amount prior to the municipal issuance of a final certificate of occupancy
for the subject property.
(4)
Appeal of nonresidential development fees. 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 Borough of Fair Lawn. 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.
F.
Affordable Housing Trust Fund.
(1)
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Chief Financial Officer of the Borough
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 10% of the adaptable 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 Borough of
Fair Lawn's affordable housing program.
(3)
Within seven days from the opening of the trust fund account, the
Borough of Fair Lawn shall provide COAH with written authorization,
in the form of a three-party escrow agreement between the municipality,
the bank, 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 housing trust fund shall only be used
on eligible affordable housing activities approved by COAH.
G.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved
by COAH. Funds deposited in the housing trust fund may be used for
any activity approved by COAH to address the Borough of Fair Lawn'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
5:97-8.9 and specified in the approved spending plan.
(2)
Funds shall not be expended to reimburse the Borough of Fair Lawn
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 municipal 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 down payment 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 municipal Fair Share Plan to make them affordable to
households earning 30% or less of median income. The use of development
fees in this manner shall entitle the Borough of Fair Lawn to bonus
credits pursuant to N.J.A.C. 5:97-3.7.
(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 Borough of Fair Lawn 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.
H.
Monitoring. The Borough of Fair Lawn shall complete and return to
COAH all monitoring forms included in monitoring requirements related
to the collection of development fees from residential and nonresidential
developers, payments in lieu of constructing affordable units on site,
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 Borough
of Fair Lawn's housing program, as well as to the expenditure of revenues
and implementation of the plan approved by the court. All monitoring
reports shall be completed on forms designed by COAH.
I.
Ongoing collection of fees. The ability for the Borough of Fair Lawn
to impose, collect and expend development fees shall expire with its
judgment of compliance unless the Borough of Fair Lawn has filed an
adopted Housing Element and Fair Share Plan with COAH, has petitioned
for substantive certification, and has received COAH's approval of
its development fee ordinance. If the Borough of Fair Lawn fails to
renew its ability to impose and collect development fees prior to
the expiration of 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 § 20 of P.L.
1985, c. 222 (N.J.S.A. 52:27D-320). The Borough of Fair Lawn 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
Borough of Fair Lawn retroactively impose a development fee on such
a development. The Borough of Fair Lawn shall not expend development
fees after the expiration of its substantive certification or judgment
of compliance.
