[Ord. #2117, § 1, 6-26-2010, added]
a. This article is intended to assure that low- and moderate-income
units (affordable units) are created with controls on affordability
over time and that low- and moderate-income individuals and households
shall occupy these units.
b. The Township of Bernards 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 Township
Committee. The Fair Share Plan describes the ways the Township of
Bernards shall address its fair share for low- and moderate-income
housing as determined by the Superior Court and documented in the
Housing Element.
[Ord. #2415, 4-23-2019, amended]
c. This article implements and incorporates the Fair Share Plan and
addresses the requirements of N.J.A.C. 5:93-1, et seq., as amended
and supplemented, N.J.A.C. 5:80-26.1, et seq. as amended and supplemented,
and the New Jersey Fair Housing Act of 1985, as may be amended and
supplemented.
[Ord. #2415, 4-23-2019, amended]
d. The Township of Bernards shall comply with the following monitoring
and reporting requirements regarding the status of the implementation
of its Housing Element and Fair Share Plan:
[Ord. #2415, 4-23-2019, amended]
1. Beginning on August 28, 2019, and on every anniversary of that date
through April 1, 2025, the Township shall provide annual reporting
of its Affordable Housing Trust Fund activity to the New Jersey Department
of Community Affairs, Council on Affordable Housing, or Local Government
Services, or other entity designated by the State of New Jersey, with
a copy provided to the Fair Share Housing Center (FSHC) and posted
on the municipal website, using forms developed for this purpose by
the New Jersey Department of Community Affairs (NJDCA), Council on
Affordable Housing (COAH), or Local Government Services (NJLGS). The
reporting shall include an accounting of all Affordable Housing Trust
Fund activity, including the source and amount of funds collected
and the amount and purpose for which any funds have been expended.
2. Beginning on August 28, 2019, and on every anniversary of that date
through April 1, 2025, the Township shall provide annual reporting
of the status of all affordable housing activity within the municipality
through posting on the municipal website with a copy of such posting
provided to the Fair Share Housing Center, using forms previously
developed for this purpose by COAH or any other forms endorsed by
the Special Master and FSHC.
3. By July 1, 2020, as required pursuant to N.J.S.A. 52:27D-313, the
Township will post on its municipal website, with a copy provided
to FSHC, a status report as to its implementation of its plan and
an analysis of whether any unbuilt sites or unfulfilled mechanisms
continue to present a realistic opportunity and whether any mechanisms
to meet unmet need should be revised or supplemented. Such posting
shall invite any interested party to submit comments to the municipality,
with a copy to FSHC, 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.
4. By July 28, 2020, and every third year thereafter, as required by
N.J.S.A. 52:27D-329.1, the Township will post on its municipal website,
with a copy provided to FSHC, a status report as to its satisfaction
of its very-low-income requirements, including its family very-low-income
requirements. Such posting shall invite any interested party to submit
comments to the municipality and FSHC on the issue of whether the
municipality has complied with its very-low-income and family very-low-income
housing obligations.
e. Applicability.
[Ord. #2415, 4-23-2019, added]
1. The provisions of this section shall apply to all affordable housing
developments and affordable housing units that currently exist and
that are proposed to be created within the Township of Bernards pursuant
to the Township's most recently adopted Housing Element and Fair Share
Plan.
2. This section shall apply to all developments that contain low- and
moderate-income housing units, including any currently unanticipated
future developments that will provide low- and moderate-income housing
units, and also including projects funded with low-income housing
tax credits.
3. Any property in the Township of Bernards that is currently zoned
for nonresidential uses and subsequently receives a zoning change
or use variance or approval of a redevelopment plan to permit residential
development, or that is currently zoned for residential uses and receives
a zoning change or density variance or approval of a redevelopment
plan to permit higher density residential development, provided that
such density is at least twice the density previously permitted, shall
provide an affordable housing set-aside of 15% if the affordable units
will be for rent and 20% if the affordable units will be for sale.
No property shall be subdivided so as to avoid compliance with this
requirement. Moreover, this provision governs municipal actions only
and shall not entitle any property owner or developer to such action
by the Township. All affordable units created pursuant to this paragraph
shall be governed by the provisions of this section.
f. General requirements.
[Ord. #2415, 4-23-2019, added]
1. 13% of all affordable units created subsequent to July 1, 2008, shall
be very-low-income units as defined herein with half of the very-low-income
units being available to families.
2. At least 50% of the units addressing the Third Round Prospective
Need of 873 affordable units shall be affordable to very-low-income
and low-income households with the remainder affordable to moderate-income
households.
3. At least 25% of the Third Round Prospective Need of 873 affordable
units shall be met through rental units, including at least half (12.5%)
in rental units available to families.
4. At least 50% of the units addressing the Third Round Prospective
Need of 873 affordable units shall be available to families.
5. Not more than 25% of the Township's Prior Round Need of 508 affordable
units and Third Round Prospective Need of 873 affordable units shall
be addressed with age-restricted units.
6. Affirmative marketing of affordable units available in Bernards Township
shall be in accordance with the Township's Affirmative Marketing Plan,
with notice of available units to the following organizations: Fair
Share Housing Center, the New Jersey State Conference of the NAACP,
the Latino Action Network, NORWESCAP, the Supportive Housing Association,
and the Central Jersey Housing Resource Center.
7. All affordable housing developments shall include the required bedroom
distribution, be governed by controls on affordability and affirmatively
marketed in conformance with the Uniform Housing Affordability Controls
(UHAC), N.J.A.C. 5:80-26.1 et seq. or any successor regulation, with
the exception that in lieu of the UHAC requirement for 10% of affordable
units in rental projects being required to be at 35% of median income,
13% of affordable units in such projects shall be required to be at
30% of median income, and all other applicable law.
8. Income limits for affordable housing units for which income limits
are not established through a federal program exempted from the Uniform
Housing Affordability Controls pursuant to N.J.A.C. 5:80-26.1 shall
be updated by the Township annually within 30 days of the publication
of determinations of median income by HUD as follows:
(a)
Regional income limits shall be established Housing Region 3
based on the median income by household size, which shall be established
by a regional weighted average of the uncapped Section 8 income limits
published by HUD. To compute this regional income limit, the HUD determination
of median county income for a family of four is multiplied by the
estimated households within the county according to the most recent
decennial Census. The resulting product for each county within the
housing region is summed. The sum is divided by the estimated total
households from the most recent decennial Census in the Township's
housing region. This quotient represents the regional weighted average
of median income for a household of four. The income limit for a moderate-income
unit for a household of four shall be 80% of the regional weighted
average median income for a family of four. The income limit for a
low-income unit for a household of four shall be 50% of the HUD determination
of the regional weighted average median income for family of four.
The income limit for a very-low-income unit for a household of four
shall be 30% of the regional weighted average median income for a
family of four. These income limits shall be adjusted by household
size based on multipliers used by HUD to adjust median income by household
size. In no event shall the income limits be less than those for the
previous year.
(b)
The regional asset limit used in determining an applicant's
eligibility for affordable housing pursuant to N.J.A.C. 5:80-26.16(b)3
shall be calculated by the Township annually by taking the percentage
increase of the income limits calculated pursuant to Subparagraph
(a) above over the previous year's income limits, and applying the
same percentage increase to the regional asset limit from the prior
year. In no event shall the regional asset limit be less than that
for the previous year.
9. All new construction units shall be adaptable in conformance with
P.L. 2005, c. 350/N.J.S.A. 52:27D-311a and 52:27D-311b and all other
applicable law.
[Ord. #2117, § 1, 6-26-2010, added]
The following terms, when used in this article, shall have the
meanings given in this section:
ACCESSORY APARTMENT
A self-contained residential dwelling unit with a kitchen,
sanitary facilities, sleeping quarters and a private entrance, which
is created within an existing home, or through the conversion of an
existing accessory structure on the same site, or by an addition to
an existing home or accessory building, or by the construction of
a new accessory structure on the same site.
ACT
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.)
ADAPTABLE
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
ADMINISTRATIVE AGENT
The entity responsible for the administration of affordable
units in accordance with this article, and N.J.A.C. 5:80-26.1 et seq.
[Ord. #2420, 5-28-2019, amended]
AFFIRMATIVE MARKETING
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
AFFORDABILITY AVERAGE
The average percentage of median income at which restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
AFFORDABLE
A sales price or rent within the means of a low- or moderate-income
household as defined in N.J.A.C. 5:93-7.4; in the case of an ownership
unit, that the sales price for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.6, as may be amended and supplemented,
and, in the case of a rental unit, that the rent for the unit conforms
to the standards set forth in N.J.A.C. 5:80-26.12, as may be amended
and supplemented.
[Ord. #2420, 5-28-2019, amended]
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a one-hundred-percent affordable
development.
AFFORDABLE HOUSING PROGRAM(S)
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
AFFORDABLE UNIT
A housing unit proposed or created pursuant to the Act, credited
pursuant to N.J.A.C. 5:93-3, and/or funded through an affordable housing
trust fund.
[Ord. #2420, 5-28-2019, amended]
AGENCY
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
AGE-RESTRICTED UNIT
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
a.
All the residents of the development where the unit is situated
are 62 years or older; or
b.
At least 80% of the units are occupied by one person that is
55 years or older; or
c.
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.
ALTERNATIVE LIVING ARRANGEMENT
A structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include, but are not limited
to: transitional facilities for the homeless; Class A, B, C, D and
E boardinghomes as regulated by the State of New Jersey Department
of Community Affairs; residential health care facilities as regulated
by the New Jersey Department of Health; group homes for the developmentally
disabled and mentally ill as licensed and/or regulated by the New
Jersey Department of Human Services; and congregate living arrangements.
[Ord. #2415, 4-23-2019, added]
ASSISTED LIVING RESIDENCE
A facility licensed by the New Jersey Department of Health
and Senior Services to provide apartment-style housing and congregate
dining and to assure that assisted living services are available when
needed for four or more adult persons unrelated to the proprietor
and that offers units containing, at a minimum, one unfurnished room,
a private bathroom, a kitchenette and a lockable door on the unit
entrance.
CERTIFIED HOUSEHOLD
A household that has been certified by an administrative
agent as a low-income household or moderate-income household.
COAH
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.).
DCA
The State of New Jersey Department of Community Affairs.
DEFICIENT HOUSING UNIT
A housing unit with health and safety code violations that
require the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
DEVELOPER
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development, including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
DEVELOPMENT
The division of a parcel of land into two or more parcels;
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill;
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
INCLUSIONARY DEVELOPMENT
A development containing both affordable units and market
rate units. This term includes, but is not necessarily limited to;
new construction, the conversion of a nonresidential structure to
residential and the creation of new affordable units through the reconstruction
of a vacant residential structure.
LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal
to 50% or less of the median household income.
LOW-INCOME UNIT
A restricted unit that is affordable to a low-income household.
MAJOR SYSTEM
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building, which
include but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement or load-bearing structural systems.
MARKET-RATE UNITS
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
MEDIAN INCOME
The median income by household size for the applicable county,
as adopted annually by COAH, or as calculated in accordance with the
procedures set forth in § 21-85.1f8(a).
[Ord. #2415, 4-23-2019, amended]
MODERATE-INCOME HOUSEHOLD
A household with a total gross annual household income in
excess of 50% but less than 80% of the median household income.
NONEXEMPT SALE
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class A
beneficiary and the transfer of ownership by court order.
RANDOM SELECTION PROCESS
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
REGIONAL ASSET LIMIT
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by COAH's adopted Regional Income Limits published annually
by COAH, or as calculated in accordance with the procedures set forth
in § 21-85.1f8(b).
[Ord. #2415, 4-23-2019, amended]
REHABILITATION
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
RENT
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
RESTRICTED UNIT
A dwelling unit, whether a rental unit or ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
UHAC
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
VERY-LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal
to 30% or less of the median household income.
WEATHERIZATION
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for rehabilitation.
[Ord. #2117, § 1, 6-26-2010, added; Ord. # 2213, amended; Ord. #2415,
4-23-2019, amended]
The following affordable housing regulations and mechanisms
shall apply to: alternative living arrangements; 100% affordable new
development; extension of expiring controls; market to affordable
programs; inclusionary zoning and rehabilitation programs.
a. A Rehabilitation Program.
1. The Township of Bernards' rehabilitation program shall be designed
to renovate deficient housing units occupied by low- and moderate-income
households such that, after rehabilitation, these units will comply
with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28.
2. Both owner-occupied and renter-occupied units shall be eligible for
rehabilitation funds.
3. All rehabilitated units shall remain affordable to low- and moderate-income
households for a minimum period of 10 years (the control period).
For owner-occupied units the control period will be enforced with
a lien and for renter-occupied units the control period will be enforced
with a deed restriction.
4. The Township of Bernards shall dedicate a minimum of $10,000 for
each unit to be rehabilitated through this program, reflecting the
minimum hard cost of rehabilitation for each unit.
5. The Township of Bernards shall adopt a resolution committing to fund
any shortfall in the rehabilitation programs for the Township of Bernards.
6. The Township of Bernards shall designate, subject to the approval
by the Court, one or more administrative agents to administer the
rehabilitation program in accordance with N.J.A.C. 5:93. 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 the Court's approval. 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).
[Ord. #2420, 5-28-2019, amended]
7. Units in a rehabilitation program shall be exempt from N.J.A.C. 5:93-11
and uniform housing affordability controls (UHAC), but shall be administered
in accordance with the following:
[Ord. #2420, 5-28-2019, amended]
(a)
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is re-rented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a low- or moderate-income household at an affordable rent
and affirmatively marketed pursuant to N.J.A.C. 5:93-11 and UHAC.
(b)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to N.J.A.C. 5:93-7 and UHAC.
(c)
Rents in rehabilitated units may increase annually based on
the standards in N.J.A.C. 5:93-7.
(d)
Applicant and/or tenant households shall be certified as income-eligible
in accordance with N.J.A.C. 5:93-9 and UHAC, except that households
in owner-occupied units shall be exempt from the regional asset limit.
b. A Market to Affordable program.
1. A market to affordable program is established to permit the purchase
or subsidization of units through a written agreement with the property
owner and sold or rented to low- and moderate-income households. Subject
to the provisions of Subparagraph b2(c) below, the market to affordable
programs may produce both low- and moderate-income units. (The program
may be limited to only low- or only moderate-income units as per the
Fair Share Plan.)
2. The following provisions shall apply to market to affordable programs:
(a)
At the time they are offered for sale or rental, eligible units
may be new, preowned or vacant.
(b)
The units shall be certified to be in sound condition as a result
of an inspection performed by a licensed building inspector.
(c)
The municipality will provide a minimum of $25,000 per unit
to subsidize each moderate-income unit and/or $30,000 per unit to
subsidize each low-income unit, with additional subsidy depending
on the market prices or rents in a municipality.
(d)
The maximum number of creditable market to affordable units
shall be equal to no more than 10 for-sale units and 10 rental units
or a combined total of 10% of the fair share obligation, whichever
is greater. (Additional units may be approved through the Court process
if the municipality demonstrates the successful completion of its
initial market to affordable program.)
3. The units shall comply with N.J.A.C. 5:93-7 and UHAC with the following
exceptions:
[Ord. #2420, 5-28-2019, amended]
(a)
Bedroom distribution [N.J.A.C. 5:80-26.3(b) and (c)];
(b)
Low/moderate-income split [N.J.A.C. 5:80-26.3(a)]; and
(c)
Affordability average [N.J.A.C. 5:80-26.3(d) and (e)]; however:
(1)
The maximum rent for a moderate-income unit shall be affordable
to households earning no more than 60% of the median income and the
maximum rent for a low-income unit shall be affordable to households
earning no more than 44% of the median income; and
(2)
The maximum sales price for a moderate-income unit shall be
affordable to households earning no more than 70% of the median income
and the maximum sales price for a low-income unit shall be affordable
to households earning no more than 40% of median income.
c. Extension of controls.
1. N.J.A.C. 5:97-6.14(a), as upheld by the New Jersey Supreme Court,
permits a municipality to address a portion of its new construction
obligation through the extension of affordability controls in accordance
with N.J.A.C. 5:97-9 and UHAC, subject to the following:
(a)
The unit meets the criteria for prior-cycle or post-1986 credits
set forth in N.J.A.C. 5:93-3.2 or 3.3;
[Ord. #2420, 5-28-2019, amended]
(b)
The affordability controls for the unit are scheduled to expire
during the 1999 through 2025 period;
(c)
The municipality shall obtain a continuing certificate of occupancy
or a certified statement from the municipal building inspector stating
that the restricted unit meets all code standards; and
(d)
If a unit requires repair and/or rehabilitation work in order
to receive a continuing certificate of occupancy or certified statement
from the municipal building inspector, the municipality shall fund
and complete the work. A municipality may utilize its affordable housing
trust fund to purchase the unit and/or complete the necessary repair
and/or rehabilitation work.
2. The effect of expiring controls on the affordable housing stock is
a serious concern for Bernards Township, and Bernards plans to make
every effort to extend these controls and retain this affordability
within the existing housing stock.
3. Bernards Township intends to expend funds from its Housing Trust
program to secure a written commitment from the owner to extend controls.
d. Down Payment Affordability Assistance Program.
1. Pursuant to Section 21-86.1h3(a), there is established a Down Payment
Affordability Assistance Program funded by development fees payable
only from the Affordable Housing Trust Fund and administered through
the affordable housing program for eligible purchasers ("purchasers")
who seek to purchase low- or moderate-income housing (an "affordable
unit"). Purchasers will not receive development fee funds directly,
but the Township will make funds available at closing to the purchaser's
attorney trust account.
(a)
Purchasers that seek down payment assistance through the Township's
grant program must submit an application to the administrative agent.
The maximum amount of any Township grant shall not exceed $8,000,
and the Township shall not award more than four per year. The Chief
Financial Officer must certify that funds are available from the Affordable
Housing Trust Fund.
[Ord. #2420, 5-28-2019, amended]
(b)
Qualification and eligibility for this Township Down Payment
Assistance Program is as follows in Paragraphs 2 to 10:
2. Purchasers must submit an application to the administrative agent
and be deemed precertified, meaning that the purchaser demonstrates
to the reasonable satisfaction of the administrative agent that there
is a very high likelihood that with the receipt of the grant the purchaser
will be able to pay all of the required expenses relating to owning
an affordable unit.
3. Purchasers will only be awarded a grant by the Township after entering
a contract to purchase an affordable unit and the attorney review
process has been concluded. The purchaser is responsible to pay the
attorney review fee of the Township's attorney for the grant review
process and closing.
4. Purchasers must have incomes not exceeding low- or moderate-income
guidelines as applicable for Somerset County pursuant to the New Jersey
Fair Housing Act of 1985, N.J.S.A. 52:27D-301 et seq.
5. An affordable unit to qualify for purchase must meet housing quality
standards as evidenced by a professional and written home inspection
report accepted by the administrative agent.
6. The administrative agent must certify purchasers creditworthy, and
the amount of the mortgage principal shall not exceed three times
the purchaser's gross annual income.
7. Purchasers must occupy the affordable unit as a principal residence
and own no other real property or dwelling. The affordable unit is
for purchase only and purchasers may not lease the unit.
8. Purchasers must attend a prepurchase homebuyer education class administered
by the administrative agent before entering a contract of sale for
an affordable unit and thereafter receive an approval certificate
by meeting with a counselor of the administrative agent.
9. The Township will make available affording housing funds at closing
to the purchaser's attorney trust account. The purchaser is responsible
to pay the attorney review fee of the Township's attorney for the
grant review process and closing.
10.
At no time will a purchaser be permitted to receive funding
approval under any of the Township's affordability assistance programs
more than once in a five-year time period.
e. Alternative living arrangements.
1. The administration of an alternative living arrangement shall be
in compliance with N.J.A.C. 5:93-5.8 and Uniform Housing Affordability
Controls (UHAC), with the following exceptions:
(a)
Affirmative marketing (N.J.A.C. 5:80-26.15); provided, however,
that the units or bedrooms may be affirmatively marketed by the provider
in accordance with an alternative plan approved by COAH or the Court;
(b)
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
2. With the exception of units established with capital funding through
a twenty-year operating contract with the Department of Human Services,
Division of Developmental Disabilities, alternative living arrangements
shall have at least thirty-year controls on affordability in accordance
with UHAC, unless an alternative commitment is approved by COAH or
the Court.
3. The service provider for the alternative living arrangement shall
act as the Administrative Agent for the purposes of administering
the affirmative marketing and affordability requirements for the alternative
living arrangement.
[Ord. #2117, § 1, 6-26-2010, added]
The following general guidelines apply to all newly constructed
developments that contain low- and moderate-income housing units,
including any currently unanticipated future developments that will
provide low- and moderate-income housing units.
a. Low/Moderate Split and Bedroom Distribution of Affordable Housing
Units:
1. The fair share obligation shall be divided equally between low- and
moderate-income units, except that where there is an odd number of
affordable housing units, the extra unit shall be a low-income unit.
2. In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be low-income units.
(a)
In each affordable development, at least 13% of the restricted
units within each bedroom distribution shall be very-low-income units,
which shall be part of the 50% low-income requirement in this section.
[Ord. #2415, 4-23-2019, added]
3. Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
(b)
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
(c)
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
(d)
The remaining units may be allocated among two and three bedroom
units at the discretion of the developer.
4. Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
The standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
5. In inclusionary developments, the following schedule for the issuance
of certificates of occupancy for the required affordable housing units
relative to the issuance of certificates of occupancy for the permitted
market units shall be followed:
[Ord. #2415, 4-23-2019, added]
Maximum Percentage of Market-Rate Units Completed
(certificates of occupancy issued)
|
Minimum Percentage of Low- and Moderate-Income Units Completed
(certificates of occupancy issued)
|
---|
25
|
0
|
25+1
|
10
|
50
|
50
|
75
|
75
|
90
|
100
|
b. Accessibility requirements.
1. The first floor of all restricted townhouse dwelling units and all
restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7.
[Ord. #2420, 5-28-2019, amended]
2. All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
(a)
An adaptable toilet and bathing facility on the first floor;
(b)
An adaptable kitchen on the first floor;
(c)
An interior accessible route of travel on the first floor;
(d)
An interior accessible route of travel shall not be required
between stories within an individual unit;
(e)
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
(f)
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that the Township of Bernards has collected funds
from the developer sufficient to make 10% of the adaptable entrances
in the development accessible:
[Ord. #2420, 5-28-2019, amended]
(1)
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
(2)
To this end, the builder of restricted units shall deposit funds
within the Township of Bernards Affordable Housing Trust Fund sufficient
to install accessible entrances in 10% of the affordable units that
have been constructed with adaptable entrances.
(3)
The funds deposited under paragraph b2(f)(2) above shall be
used by the Township of Bernards for the sole purpose of making the
adaptable entrance of any affordable unit accessible when requested
to do so by a person with a disability who occupies or intends to
occupy the unit and requires an accessible entrance.
(4)
The developer of the restricted units shall submit a design
plan and cost estimate for the conversion from adaptable to accessible
entrances to the Construction Official of the Township of Bernards.
(5)
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible meet
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7, and
that the cost estimate of such conversion is reasonable, payment shall
be made to the Township of Bernards 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.
[Ord. #2420, 5-28-2019, amended]
(6)
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is site impracticable to meet
the requirements. Determinations of site impracticability shall be
in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
[Ord. #2420, 5-28-2019, amended]
c. Design.
[Ord. #2415, 4-23-2019, added]
1. In inclusionary developments, to the extent possible, low- and moderate-income
units shall be integrated with the market units.
2. In inclusionary developments, low- and moderate-income units shall
have access to all of the same common elements and facilities as the
market units.
d. Maximum Rents and Sales Prices.
1. In establishing rents and sales prices of affordable housing units,
the administrative agent shall follow the procedures set forth in
UHAC, utilizing the regional income limits established by the procedures
set forth in § 21-85.1f8(b).
[Ord. #2415, 4-23-2019, amended]
2. The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of the median income, and the average rent for restricted low-
and moderate-income units shall be affordable to households earning
no more than 52% of the median income.
3. The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units.
(a)
At least 10% of the Township's low- and moderate-income rental
units shall be affordable to households earning no more than 30% of
the median income.
4. The maximum sales price of restricted ownership units within each
affordable development shall be affordable to households earning no
more than 70% of the 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.
5. 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:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half
person household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and-one-half
person household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
6. In determining the initial rents for compliance with the affordability
average requirements for restricted units in assisted living facilities,
the following standards shall be used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half
person household; and
(c)
A two-bedroom unit shall be affordable to a two-person household
or to two one-person households.
7. The initial purchase price for all restricted ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowner and private mortgage insurance and condominium or 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.
8. The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
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.
9. 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.
10.
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.
11.
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 DCA for its Section 8 program.
[Ord. #2117, § 1, 6-26-2010, added]
The following general guidelines apply to all developments that
contain low- and moderate-income housing units, including any currently
unanticipated future developments that will provide low- and moderate-income
housing units.
a. The Township of Bernards shall adopt by resolution an affirmative
marketing plan, subject to approval through the Court process, compliant
with N.J.A.C. 5:80-26.15, as may be amended and supplemented, and
the Township's Third Round settlement agreement with Fair Share Housing
Center, dated August 28, 2018.
[Ord. #2415, 4-23-2019, amended]
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, affection 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 COAH Housing Region 3, and covers the period of deed restriction.
c. The affirmative marketing plan shall provide a regional preference
for all households that live and/or work in COAH Housing Region 3,
comprised of Somerset, Middlesex and Hunterdon Counties.
d. The administrative agent designated by the Township of Bernards shall
assure the affirmative marketing of all affordable units consistent
with the affirmative marketing plan for the municipality.
e. In implementing the affirmative marketing plan, the administrative
agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
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 Township of Bernards.
[Ord. #2117, § 1, 6-26-2010, added]
a. In referring certified households to specific restricted units, to
the extent feasible and without causing an undue delay in occupying
the unit, the administrative agent shall strive to:
1. Provide an occupant for each bedroom;
2. Provide children of different sex with separate bedrooms; and
3. Prevent more than two persons from occupying a single bedroom.
b. Additional provisions related to occupancy standards, if any, shall
be provided in the municipal Operating Manual.
[Ord. #2117, § 1, 6-26-2010, added]
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 Township of Bernards 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.
[Ord. #2117, § 1, 6-26-2010, added]
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 and only if the appropriate permits are granted by the
Township of Bernards and the administrative agent, with pertinent
information supplied so as to compute the adjusted price.
[Ord. #2117, § 1, 6-26-2010, added]
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 the median
income, and moderate-income ownership units shall be reserved for
households with a gross household income less than 80% of the 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.
[Ord. #2117, § 1, 6-26-2010, added]
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 80% 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).
[Ord. #2117, § 1, 6-26-2010, added]
a. Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this article until the Township of Bernards 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 Somerset. A copy of the filed document shall be provided
to the administrative agent within 30 days of the receipt of a certificate
of occupancy.
c. A restricted rental unit shall remain subject to the affordability
controls of this article, despite the occurrence of any of the following
events:
1. Sublease or assignment of the lease of the unit;
2. Sale or other voluntary transfer of the ownership of the unit; or
3. The entry and enforcement of any judgment of foreclosure.
[Ord. #2117, § 1, 6-26-2010, added]
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 article.
[Ord. #2117, § 1, 6-26-2010, added]
a. Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
1. Very-low-income rental units shall be reserved for households with
a gross household income less than or equal to 30% of the median income.
2. Low-income rental units shall be reserved for households with a gross
household income less than or equal to 50% of the median income.
3. Moderate-income rental units shall be reserved for households with
a gross household income less than 80% of the 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 or a moderate-income household, as applicable to the unit,
and the rent proposed for the unit does not exceed 35% 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% 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% of its 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 Paragraph b1 through 5 above with
the administrative agent, who shall counsel the household on budgeting.
[Ord. #2117, § 1, 6-26-2010, added]
a. The position of Municipal Housing Liaison (MHL) for the Township
of Bernards is established by this section. The Township Committee
shall make the actual appointment of the MHL by means of a resolution.
1. The MHL must be either a full-time or part-time employee of the Township
of Bernards.
2. The person appointed as the MHL must be identified as required through
the Court process.
[Ord. #2415, 4-23-2019, amended]
3. The MHL must meet all requirements for qualifications accepted by
the Court, including initial and periodic training.
[Ord. #2415, 4-23-2019, amended]
4. The Municipal Housing Liaison shall be responsible for oversight
administration of the affordable housing program for the Township
of including the following responsibilities which may not be contracted
administrative agent:
(a)
Serving as the municipality's primary point of contact for a
from the state, affordable housing providers, administrative agents
interested households;
(b)
The implementation of the affirmative marketing plan and affordability
controls.
(c)
When applicable, supervising any contracting administrative
agent.
(d)
Monitoring the status of all restricted units in the Township
of Bernards Fair Share Plan;
(e)
Compiling, verifying and submitting annual reports as required by the Township's Third Round affordable housing settlement agreement and enumerated in §
21-85.1d above;
[Ord. #2415, 4-23-2019, amended]
(f)
Coordinating meetings with affordable housing providers and
administrative agents, as applicable; and
(g)
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by the Affordable Housing Professionals of NJ (AHPNJ),
or Fair Share Housing Center.
[Ord. #2415, 4-23-2019, amended]
b. The Township of Bernards shall designate by resolution of the Township
Committee one or more administrative agents to administer newly constructed
affordable units in accordance UHAC and the requirements of this section.
The Township reserves the right to contract, from time to time, with
an administrative agent, other than the administrative agent named
herein. Any such contract shall be authorized by resolution of the
Township Committee, and shall not require amendment of this section.
[Ord. #2415, 4-23-2019, amended]
c. An operating manual shall be provided by the administrative agent(s)
to be adopted by resolution of the Township Committee. 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).
[Ord. #2415, 4-23-2019, amended]
d. Duties and responsibilities.
1. 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, 16 and 18 thereof, which includes:
(a)
Attending continuing education opportunities on affordability
controls, compliance monitoring, and affirmative marketing as offered
or approved by AHPNJ;
[Ord. #2415, 4-23-2019, amended]
(g)
Processing requests from unit owners; and
(h)
Enforcement, though the ultimate responsibility for retaining
controls on the units rests with the municipality.
2. The administrative agent shall have authority to take all actions
necessary and appropriate to carry out its responsibilities, hereunder.
[Ord. #2117, § 1, 6-26-2010, added]
a. Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, municipal fines, a requirement
for household recertification, acceleration of all sums due under
a mortgage, recoupment of any funds from a sale in the violation of
the regulations, injunctive relief to prevent further violation of
the regulations, entry on the premises, and specific performance.
b. After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
1. The municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation, or violations, of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
found by the court to have violated any provision of the regulations
governing affordable housing units, the owner, developer or tenant
shall be subject to one or more of the following penalties, at the
discretion of the court:
(a)
A fine of not more than $2,000 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.
(b)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Township of Bernards Affordable Housing Trust
Fund of the gross amount of rent illegally collected.
(c)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation costs,
as determined by the court.
2. The municipality may file a court action in the Superior Court seeking
a judgment, which would result in the termination of the owner's equity
or other interest in the unit, in the nature of a mortgage foreclosure.
Any judgment shall be enforceable as if the same were a judgment of
default of the first purchase money mortgage and shall constitute
a lien against the low- and moderate-income unit.
c. Such judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the low-
and moderate-income unit of the violating owner shall be sold at a
sale price which is not less than the amount necessary to fully satisfy
and pay off any first purchase money mortgage and prior liens and
the costs of the enforcement proceedings incurred by the municipality,
including attorney's fees. The violating owner shall have the right
to possession terminated as well as the title conveyed pursuant to
the Sheriff's sale.
d. 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 Township.
e. Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the 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.
f. 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.
g. Failure of the 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 low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
h. The owner shall remain fully obligated, responsible and liable for
complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
[Ord. #2117, § 1, 6-26-2010, added; Ord. #2415, 4-23-2019, amended]
Appeals from all decisions of an administrative agent designated
pursuant to this article shall be filed in writing with the Superior
Court.
[Ord. #1372, 8-24-1999, added; Ord. #1391, § 1, 2-15-2000, amended;
Ord. #1779, 3-29-2005, amended; Ord. #2044, § 1, 12-9-2008, amended;
Ord. #2056, § 1, 3-10-2009, amended; Ord. #2117, § 3, 6-26-2010, amended]
a. Findings and Purposes.
1. The Township Committee of the Township of Bernards
finds and declares that the creation and preservation of affordable
housing in the Township serves the public interest. Maintaining and
improving a stock of sound affordable housing requires affirmative
steps by local government working cooperatively with public bodies
at all levels and with the private sector.
2. The New Jersey Supreme Court, in Holmdel Builder's
Ass'n v. Holmdel Township, 121 N.J. 550 (1990), determined that mandatory
development fees are authorized by the Fair Housing Act of 1985, N.J.S.A.
52:27D-301 et seq., and the State Constitution.
3. Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A.
52:27D-329.2) and the Statewide Non-Residential Development Fee Act
(N.J.S.A. 40:55D-8.1 through 55D-8.7), 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 Court-approved spending plan may retain fees collected
from nonresidential development.
[Ord. #2415, 4-23-2019, amended]
4. The purpose of this subsection is to establish standards for the
collection, maintenance and expenditure of development fees in accordance
with COAH's rules and regulations, and in accordance with P.L. 2008,
c. 46, Section 8 and 32-38. Fees collected pursuant to this subsection
shall be used for the sole purpose of providing low- and moderate-income
housing. This subsection shall be interpreted within the framework
of regulations on development fees, including N.J.A.C. 5:93-1 et seq.
and the Fair Housing Act of 1985, and as may be amended.
[Ord. #2415, 4-23-2019, amended]
b. Basic Requirements.
[Ord. #2415, 4-23-2019, amended]
1. This subsection shall not be effective until approved by the Court.
2. The Township of Bernards shall not spend development fees until the
Court has approved a plan for spending such fees in conformance with
N.J.A.C. 5:93-1 et seq.
c. Definitions. For the purposes of this subsection,
the following terms shall have the following meanings:
AFFORDABLE means a sales price or rent within
the means of a low- or moderate-income household as defined in N.J.A.C.
5:93-1 et seq. [Ord. #2415, 4-23-2019, amended]
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AFFORDABLE HOUSING DEVELOPMENT means 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.
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AFFORDABLE UNIT means any housing unit proposed
or created pursuant to the Fair Housing Act of 1985, credited pursuant
to N.J.A.C. 5:93-1 et seq., or funded through the Township's affordable
housing trust fund. [Ord. #2415, 4-23-2019, amended]
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COAH or COUNCIL means the New Jersey Council
on Affordable Housing established under the Fair Housing Act of 1985,
which has primary jurisdiction for the administration of affordable
housing obligations in accordance with sound regional planning considerations
in the state.
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DEVELOPER means 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 individual, person, partnership, association, company, or
corporation having an enforceable proprietary interest in such land.
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DEVELOPMENT FEES means money paid by a developer
for the improvement of property as permitted in the Fair Housing Act
of 1985, as amended. [Ord. #2415, 4-23-2019, amended]
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EQUALIZED ASSESSED VALUE means the assessed
value of a property divided by the current average ration of assessed
to true value for the Township as determined in accordance with Sections
1, 5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
Estimates at the time of building permit may be obtained by the Tax
Assessor utilizing estimates for construction cost. Final equalized
assessed value will be determined at project completion by the Tax
Assessor.
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GREEN BUILDING STRATEGIES means 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.
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SUBSTANTIAL CHANGE means a modification or elimination
of a significant condition or conditions in a memorializing resolution
or any significant modification in the design or layout of the subdivision
plan previously approved which require a revised or amended subdivision
plan application.
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d. Development Fee Schedule.
1. Residential Development.
(a)
Within the R-1, R-2, R-3, R-4, R-5, R-6, R-7,
RC-1, RC-2, RC-3, RC-4, SH-1, SH-2, and SH-3 Zone Districts in the
Township of Bernards, 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 the 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 shall 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. Example: If an approval allows
four units to be constructed on a site that was zoned for two units,
the fees could equal 1.5% of the equalized assessed value on the first
two units; and 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.
[Ord. #2056, § 1, 3-10-2009, amended]
2. Nonresidential Development.
(a)
Within all zoning districts in the Township
of Bernards, nonresidential developers, except for developers of the
types of development specifically exempted, shall pay a fee equal
to 2.5% of the equalized assessed value of the land and improvements,
for all new nonresidential construction on an unimproved lot or lots.
[Ord. #2056, § 1, 3-10-2009, amended]
(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.
[Ord. #2056, § 1, 3-10-2009, amended]
(c)
Development fees shall be imposed and collected
when an existing nonresidential 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 improvements
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.
e. Eligible Exactions, Ineligible Exactions and Exemptions.
1. 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.
2. Development fees shall be imposed and collected when
an existing structure undergoes a change to a more intense use, is
demolished and replaced, or is expanded, if the expansion is not otherwise
exempt from the development fee requirement. The development fee shall
be calculated on the increase in the equalized assessed value of the
improved structure.
3. Residential developments that have received preliminary
or final site plan approval prior to the effective date of the initial
development fee ordinance codified in this subsection shall be exempt
from paying a development fee, 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
and final site plan approval for this purpose. The fee percentage
shall be vested on the date that the building permit is issued.
4. Development fees shall not be imposed when an existing
residential structure is expanded (including additions, alterations,
renovations or reconstruction work).
5. The nonresidential portion of a mixed-use inclusionary
or market rate development shall be subject to the two-and-one-half-percent
development fee, unless otherwise exempted below.
6. The two-and-one-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 to nonresidential developments.
7. Nonresidential developments shall be exempt from the
payment of nonresidential development fees in accordance with the
exemptions required pursuant to the Statewide Non-Residential Development
Fee Act, P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.1, et seq.), as specified
in the Form N-RDF, State of New Jersey Non-Residential Development
Certification/Exemption Form. Specifically, all nonresidential construction
of buildings or structures on property used by churches, synagogues,
mosques, and other houses of worship, and property used for educational
purposes, which is tax exempt pursuant to N.J.S.A. 54:4-3.6, shall
be exempt from the imposition of a nonresidential development fee,
provided that the property continues to maintain its tax exempt status
under the statute for a period of at least three years from the date
of issuance of the certificate of occupancy. In addition, the following
shall be exempt from the imposition of a nonresidential development
fee:
(a)
Parking lots and parking structures, regardless
of whether the parking lot or parking structure is constructed in
conjunction with a nonresidential development, such as an office building,
or whether the parking lot is developed as an independent nonresidential
development;
(b)
Any nonresidential development which is an amenity
to be made available to the public, including, but not limited to,
recreational facilities, community centers, and senior centers, as
defined by the Statewide Non-Residential Development Fee Act, which
are developed in conjunction with or funded by a non-residential developer;
(c)
Nonresidential construction resulting from a
relocation of or an on-site improvement to a nonprofit hospital or
a nursing home facility;
(d)
Projects that are located within a specifically
delineated urban transit hub, as defined pursuant to N.J.S.A. 34:1B-208;
(e)
Projects that are located within an eligible
municipality, as defined under N.J.S.A. 34:1B-208, which a majority
of the project is located within a one-half-mile radius of the midpoint
of a platform area for a light rail system; and
(f)
Projects determined by the New Jersey Transit
Corporation to be consistent with a transit village plan developed
by a transit village designated by the Department of Transportation.
8. Any exemption claimed by a developer shall be substantiated
by that developer. 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 as the basis for the exemption
no longer applies, and shall make the payment of the nonresidential
development fee, in that event, within three years after that event
or after the issuance of the final certificate of occupancy of the
nonresidential development, whichever is later.
9. If a property which was exempted from the collection
of a nonresidential development fee thereafter ceases to be exempt
from property taxation, the owner of the property shall remit the
fees required pursuant to this section within 45 days of the termination
of the property tax exemption. Unpaid nonresidential development fees
under these circumstances may be enforceable by the Township of Bernards
as a lien against the real property of the owner.
f. Collection of Development Fees.
1. Upon the granting of a preliminary, final or other
applicable approval, for a development, the applicable approving authority
shall direct its staff to notify the construction official or other
designated Township official responsible for the issuance of a building
permit.
2. For nonresidential developments only, the developer
shall also be provided with a copy of Form N-RDF, State of New Jersey
Non-Residential Development Certification/Exemption to be completed
as per the instructions provided. The developer of a nonresidential
development shall complete Form N-RDF as per the instructions provided.
The construction official shall verify the information submitted by
the nonresidential developer as per the instructions provided in 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.
3. The construction official or other Township official
responsible for the issuance of a building permit shall notify the
Township Tax Assessor of the issuance of the first building permit
for a development which is subject to a development fee.
4. Within 90 days of receipt of that notice, the Township
Tax Assessor, based on the plans filed, shall provide an estimate
of the equalized assessed value of the development.
5. The construction official responsible for the issuance
of a final certificate of occupancy shall notify the Tax Assessor
of any and all requests for the scheduling of a final inspection on
property which is subject to a development fee.
6. Within 10 business days of a request for the scheduling
of a final inspection, the Township Tax Assessor shall confirm or
modify the previously estimated equalized assessed value of the improvements
of the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
7. Should the Township fail to determine or notify the
developer of the amount of the development fee within 10 business
days of the request for final inspection, the developer may estimate
the amount due and pay that estimated amount consistent with the dispute
process set forth in Subsection b of Section 37 of P.L. 2008, c. 46
(N.J.S.A. 40:55D-8.6).
8. The Township shall collect up to 50% of the calculated
development fee at the time of the issuance of the building permit,
with the remaining portion to be collected at the issuance of the
certificate of occupancy. Regardless of the time of collection, the
development fee shall be based on the percentage that applies on the
date that building permits are issued.
[Ord. #2056, § 1, 3-10-2009, amended]
10.
Appeal of development fees.
(a)
A developer may challenge residential development
fees imposed by filing a challenge with the Somerset County Board
of Taxation. Pending a review and determination by the Board, collected
fees shall be placed in an interest-bearing escrow account by the
Township of Bernards. Appeals from a determination of the Board may
be made to the tax court in accordance with the provisions of the
State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within
90 days after the date of such determination. Interest earned on amounts
escrowed shall be credited to the prevailing party.
(b)
A developer may challenge nonresidential development
fees imposed by filing a challenge with the Director of the Division
of Taxation. Pending a review and determination by the Director, which
shall be made within 45 days of receipt of the challenge, collected
fees shall be placed in an interest-bearing escrow account by the
Township of Bernards. 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.
g. 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 Township for the purpose of depositing development fees collected
from residential and nonresidential developers and proceeds from the
sale of units with extinguished controls, which shall be designated
as the "Affordable Housing Trust Fund."
2. The following additional funds may 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;
(f)
Proceeds from the sale of affordable units;
and
(g)
Any other funds collected in connection with
the Township of Bernards' affordable housing program.
3. In the event of a failure by the Township to comply with trust fund
monitoring and reporting requirements or to submit accurate monitoring
reports; or a failure to comply with the conditions of the judgment
of compliance or a revocation of the judgment of compliance; or a
failure to implement the approved spending plan and to expend funds
within the applicable required time period as set forth in In re Tp.
of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J. Super.
563); or the expenditure of funds on activities not approved by the
Court; or for other good cause demonstrating the unapproved use(s)
of funds, the Court may authorize the State of New Jersey, Department
of Community Affairs, Division of Local Government Services (LGS),
to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the Township, or, if not practicable, then within the County
or the Housing Region.
[Ord. #2415, 4-23-2019, amended]
Any party may bring a motion before the Superior Court presenting
evidence of such condition(s), and the Court may, after considering
the evidence and providing the municipality a reasonable opportunity
to respond and/or to remedy the noncompliant condition(s), and upon
a finding of continuing and deliberate noncompliance, determine to
authorize LGS to direct the expenditure of funds in the Trust Fund.
The Court may also impose such other remedies as may be reasonable
and appropriate to the circumstances.
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4. All interest accrued in the housing trust fund shall
only be used on eligible affordable housing activities approved by
the Court.
[Ord. #2415, 4-23-2019, amended]
h. Use of Money.
1. The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the Affordable Housing Trust Fund
may be used for any activity approved by the Court to address the
Township of Bernards' 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 authorized
by law or regulation and specified in the approved spending plan.
[Ord. #2415, 4-23-2019, amended]
2. Funds shall not be expended to reimburse the Township
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.
[Ord. #2415, 4-23-2019, amended]
(c)
Payments in lieu of constructing affordable
units on site and funds from the sale of units with extinguished controls
shall be exempt from the affordability assistance requirement.
4. The Township 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.
[Ord. #2415, 4-23-2019, amended]
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 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.
[Ord. #2415, 4-23-2019, amended]
i. Monitoring. The Township shall complete and submit to the Court,
Special Master, and FSHC all monitoring reports included in the monitoring
requirements related to the collection of development fees from residential
and nonresidential developers, payments in lieu of construction 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 Township's affordable housing program, as well as to the
expenditure of revenues and implementation of the plan approved by
the Court.
[Ord. #2415, 4-23-2019, amended]
j. Ongoing Collection of Development Fees. The Township's ability to
impose, collect and expend development fees shall expire on July 1,
2025, unless the Court has approved the Township's ability to continue
to collect and expend development fees beyond that date. If the Township
fails to secure the Court's approval to renew its ability to impose
and collect development fees prior July 1, 2025, it may be subject
to forfeiture of any or all funds remaining within its Affordable
Housing Trust Fund. Any funds so forfeited shall be deposited into
the New Jersey Affordable Housing Trust Fund established pursuant
to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Township
shall not impose a residential development fee on a development that
receives preliminary or final site plan approval after the expiration
of its judgment of compliance, nor shall the Township retroactively
impose a development fee on such a development. The Township shall
not expend development fees after the expiration of its judgment of
compliance, unless approved by the Court.
[Ord. #2415, 4-23-2019, amended]