Township of Bernards, NJ Affordable Housing

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.

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]

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]

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]

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.

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.

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.

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.

Applicability.

[Ord. #2415, 4-23-2019, added]

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.

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.

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.

General requirements.

[Ord. #2415, 4-23-2019, added]

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.

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.

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.

At least 50% of the units addressing the Third Round Prospective Need of 873 affordable units shall be available to families.

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.

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.

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.

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.

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.

§ 21-85.2 Definitions.

[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 DEVELOPMENT

A housing development all or a portion of which consists of restricted units.

AFFORDABLE HOUSING DEVELOPMENT

A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a one-hundred-percent affordable development.

AFFORDABLE HOUSING PROGRAM(S)

Any mechanism in a municipal Fair Share Plan prepared or implemented to address a municipality's fair share obligation.

AFFORDABLE UNIT

A housing unit proposed or created pursuant to the Act, 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:

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.

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.

MODERATE-INCOME UNIT

A restricted unit that is affordable to a moderate-income household.

NONEXEMPT SALE

Any sale or transfer of ownership other than the transfer of ownership between husband and wife; the transfer of ownership between former spouses ordered as a result of a judicial decree of divorce or judicial separation, but not including sales to third parties; the transfer of ownership between family members as a result of inheritance; the transfer of ownership through an executor's deed to a Class A beneficiary and the transfer of ownership by court order.

RANDOM SELECTION PROCESS

A process by which currently income-eligible households are selected for placement in affordable housing units such that no preference is given to one applicant over another except for purposes of matching household income and size with an appropriately priced and sized affordable unit (e.g., by lottery).

REGIONAL ASSET LIMIT

The maximum housing value in each housing region affordable to a four-person household with an income at 80% of the regional median as defined by 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.

VERY-LOW-INCOME UNIT

A restricted unit that is affordable to a very-low-income household.

WEATHERIZATION

Building insulation (for attic, exterior walls and crawl space), siding to improve energy efficiency, replacement storm windows, replacement storm doors, replacement windows and replacement doors, and is considered a major system for rehabilitation.

§ 21-85.3 Affordable Housing Programs.

[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 Rehabilitation Program.

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.

Both owner-occupied and renter-occupied units shall be eligible for rehabilitation funds.

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.

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.

The Township of Bernards shall adopt a resolution committing to fund any shortfall in the rehabilitation programs for the Township of Bernards.

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]

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.

A Market to Affordable program.

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.)

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.)

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.

Extension of controls.

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.

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.

Bernards Township intends to expend funds from its Housing Trust program to secure a written commitment from the owner to extend controls.

Down Payment Affordability Assistance Program.

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:

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.

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.

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.

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.

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.

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.

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.

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.[1]

[1]

Editor’s Note: Former Subparagraph f11, which immediately followed and required repayment of a down payment grant upon the sale of an affordable unit within five years of purchase, was repealed 5-28-2019 by Ord. #2420.

[2]Alternative living arrangements.

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).

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.

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.

[2]

Editor's Note: Former Paragraph e, Homeowner Affordability Assistance Program, was repealed 5-28-2019 by Ord. #2420. Ordinance #2420 also redesignated former Paragraph f as Paragraph e.

§ 21-85.4 through § 21-85.6. (Reserved)

§ 21-85.7 New construction.

[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.

Low/Moderate Split and Bedroom Distribution of Affordable Housing Units:

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.

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]

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.

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.

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

Accessibility requirements.

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]

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]

Design.

[Ord. #2415,[1] 4-23-2019, added]

In inclusionary developments, to the extent possible, low- and moderate-income units shall be integrated with the market units.

In inclusionary developments, low- and moderate-income units shall have access to all of the same common elements and facilities as the market units.

[1]

Editor's Note: This ordinance also redesignated former Paragraph c as Paragraph d.

Maximum Rents and Sales Prices.

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]

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.

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.

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.

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.

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.

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.

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.

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.

§ 21-85.8 Affirmative Marketing Requirements.

[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.

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]

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.

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.

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.

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.

The affirmative marketing process for available affordable units shall begin at least four months prior to the expected date of occupancy.

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.

§ 21-85.9 Occupancy standards.

[Ord. #2117, § 1, 6-26-2010, added]

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:

Provide an occupant for each bedroom;

Provide children of different sex with separate bedrooms; and

Prevent more than two persons from occupying a single bedroom.

Additional provisions related to occupancy standards, if any, shall be provided in the municipal Operating Manual.

§ 21-85.10 Control Periods for Restricted Ownership Units and Enforcement Mechanisms.

[Ord. #2117, § 1, 6-26-2010, added]

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.

The affordability control period for a restricted ownership unit shall commence on the date the initial certified household takes title to the unit.

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.

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.

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.

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.

§ 21-85.11 Price Restrictions for Restricted Ownership Units, Homeowner Association Fees and Resale Prices.

[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:

The initial purchase price for a restricted ownership unit shall be approved by the administrative agent.

The administrative agent shall approve all resale prices, in writing and in advance of the resale, to assure compliance with the foregoing standards.

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.

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.

§ 21-85.12 Buyer Income Eligibility.

[Ord. #2117, § 1, 6-26-2010, added]

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.

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.

§ 21-85.13 Limitations on Indebtedness Secured by Ownership Unit; Subordination.

[Ord. #2117, § 1, 6-26-2010, added]

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.

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).

§ 21-85.14 Control Periods for Restricted Rental Units.

[Ord. #2117, § 1, 6-26-2010, added]

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.

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.

A restricted rental unit shall remain subject to the affordability controls of this article, despite the occurrence of any of the following events:

Sublease or assignment of the lease of the unit;

Sale or other voluntary transfer of the ownership of the unit; or

The entry and enforcement of any judgment of foreclosure.

§ 21-85.15 Price Restrictions for Rental Units; Leases.

[Ord. #2117, § 1, 6-26-2010, added]

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.

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.

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.

§ 21-85.16 Tenant Income Eligibility.

[Ord. #2117, § 1, 6-26-2010, added]

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:

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.

Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of the median income.

Moderate-income rental units shall be reserved for households with a gross household income less than 80% of the median income.

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:

The household currently pays more than 35% of its gross household income for rent, and the proposed rent will reduce its housing costs;

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;

The household is currently in substandard or overcrowded living conditions;

The household documents the existence of assets with which the household proposes to supplement the rent payments; or

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.

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.

§ 21-85.17 Administration.

[Ord. #2117, § 1, 6-26-2010, added]

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.

The MHL must be either a full-time or part-time employee of the Township of Bernards.

The person appointed as the MHL must be identified as required through the Court process.

[Ord. #2415, 4-23-2019, amended]

The MHL must meet all requirements for qualifications accepted by the Court, including initial and periodic training.

[Ord. #2415, 4-23-2019, amended]

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]

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]

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]

Duties and responsibilities.

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]

(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.

The administrative agent shall have authority to take all actions necessary and appropriate to carry out its responsibilities, hereunder.

§ 21-85.18 Enforcement of Affordable Housing Regulations.

[Ord. #2117, § 1, 6-26-2010, added]

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.

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:

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.

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.

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.

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.

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.

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.

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.

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.

§ 21-85.19 Appeals.

[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.

SECTION 21-86 Affordable Housing Development Fees

§ 21-86.1 Standards for Collection, Maintenance and Expenditure.

[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]

Findings and Purposes.

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.

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.

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]

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]

Basic Requirements.

[Ord. #2415, 4-23-2019, amended]

This subsection shall not be effective until approved by the Court.

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.

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]

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.

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]

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.

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.

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]

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.

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.

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.

Development Fee Schedule.

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]

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.

Eligible Exactions, Ineligible Exactions and Exemptions.

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.

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.

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.

Development fees shall not be imposed when an existing residential structure is expanded (including additions, alterations, renovations or reconstruction work).

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.

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.

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.

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.

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.

Collection of Development Fees.

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.

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.

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.

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.

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.

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.

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).

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]

(Reserved)

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.

Affordable Housing Trust Fund.

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."

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;

(e)

Recapture funds;

(f)

Proceeds from the sale of affordable units; and

(g)

Any other funds collected in connection with the Township of Bernards' affordable housing program.

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.

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]

Use of Money.

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]

Funds shall not be expended to reimburse the Township for past housing activities.

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.

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]

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]

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]

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]