[HISTORY: Adopted by the Township Council of the Township of Eastampton 9-14-2009 by Ord. No. 2009-07 (Ch. 61 of the 1974 Township Code). Amendments noted where applicable.]
[Amended 11-28-2011 by Ord. No. 2011-13; 5-31-2022 by Ord. No. 2022-12]
A. 
This article is intended to assure that very-low-, low- and moderate-income units ("affordable units") are created with controls on affordability over time and that very-low-, low- and moderate-income households shall occupy these units. This article shall apply where inconsistent with applicable law.
B. 
The Township Land Use Planning Board has adopted a Housing Element and Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A. 40:55D-1 et seq. The Fair Share Plan has been endorsed by the governing body. The Fair Share Plan describes the ways Eastampton Township shall address its fair share for very-low-, low- and moderate-income housing as determined by the Council on Affordable Housing (COAH), or by the court, and documented in the Housing Element.
C. 
On September 13, 2022, and every anniversary thereafter, the Township shall provide annual reporting of trust fund activity to the New Jersey Department of Community Affairs, Council on Affordable Housing, or Local Government Services, or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center and posted on the municipal website, using forms developed for this purpose by the New Jersey Department of Community Affairs, Council on Affordable Housing, or Local Government Services. The reporting shall include an accounting of all housing trust fund activity, including the source and amount of funds collected and the amount and purpose for which any funds have been expended.
D. 
On September 13, 2022, and every anniversary thereafter, the Township agrees to provide annual reporting of the status of all affordable housing activity within the municipality through posting on the municipal website, with a copy of such posting provided to Fair Share Housing Center, using forms previously developed for this purpose by the Council on Affordable Housing or any other forms endorsed by the Special Master and FSHC. The report shall detail the status of all mechanisms in this Agreement. Township shall promptly respond to any requests for additional information from the Court or FSHC.
E. 
Midpoint realistic opportunity review.
(1) 
For the midpoint realistic opportunity review required pursuant to N.J.S.A. 52:27D-313, the Township was obligated to post, by July 1, 2020, on its municipal website, a status report as to its implementation of its Housing Element and Fair Share Plan and an analysis of whether any unbuilt sites or unfulfilled mechanisms continue to present a realistic opportunity and whether the mechanisms should be revised or supplemented.
(2) 
Recognizing that July 1, 2020, has passed prior to settlement of this matter, the Township shall, by July 1, 2023, post, on its municipal website, with a copy provided to Fair Share Housing Center, its midpoint realistic opportunity review report. The status report will provide an update of the Township's implementation of its HEFSP and an analysis of whether any unbuilt sites or unfulfilled mechanisms continue to present a realistic opportunity and whether the mechanisms should be revised or supplemented.
(3) 
Such posting shall invite any interested party to submit comments to the Township, with a copy to FSHC, regarding whether any sites no longer present a realistic opportunity and should be replaced and whether the 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.
F. 
For the review of very-low-income housing requirements required by N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary of the Judgment of Compliance and Repose, and every third year thereafter, the Township will post on its municipal website, with a copy provided to Fair Share Housing Center, a status report as to its satisfaction of its very-low-income requirements, including the family very-low-income requirements referenced herein. Such posting shall invite any interested party to submit comments to the municipality and FSHC on the issue of whether the municipality has complied with its very-low-income housing obligation under the terms of this settlement.
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, N.J.A.C. 5:93,[1] N.J.A.C. 5:96, N.J.A.C. 5:97[2] and UHAC (N.J.A.C. 5:80-26).
[Amended 5-31-2022 by Ord. No. 2022-12]
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 very-low-, low- and moderate-income households.
[Amended 5-31-2022 by Ord. No. 2022-12]
AFFORDABLE
A sales price or rent within the means of a very-low-, low- or moderate-income household as defined in N.J.A.C. 5:97-9;[3] in the case of an ownership unit, 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, 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.
[Amended 5-31-2022 by Ord. No. 2022-12]
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,[4] N.J.A.C. 5:97-4,[5] and/or funded through an Affordable Housing Trust Fund.
[Amended 5-31-2022 by Ord. No. 2022-12]
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 United States 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.
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 very-low-income household, low-income household or moderate-income household.
[Amended 5-31-2022 by Ord. No. 2022-12]
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.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.[6]
[Added 5-31-2022 by Ord. No. 2022-12]
EQUALIZED ASSESSED VALUE
The assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with Sections 1, 5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
[Added 5-31-2022 by Ord. No. 2022-12]
FAIR SHARE PLAN
The plan that describes the mechanisms and the funding sources, if applicable, by which a municipality proposes to address its affordable housing obligation as established in the Housing Element, including the draft ordinances necessary to implement that plan, and addresses the requirements of N.J.A.C. 5:97-3.[7]
[Added 5-31-2022 by Ord. No. 2022-12]
GREEN BUILDING STRATEGIES
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.
[Added 5-31-2022 by Ord. No. 2022-12]
HOUSING PLAN ELEMENT
The portion of the Township's Master Plan required by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-28b(3) and other legislation.
[Added 5-31-2022 by Ord. No. 2022-12]
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 by the United States Housing and Urban Development Agency, or by other sources recognized and approved by the court.
[Amended 5-31-2022 by Ord. No. 2022-12]
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.
MUNICIPAL HOUSING LIAISON
A municipal employee responsible for oversight of the municipal affordable housing program, including overseeing the administration of affordability controls, the affirmative marketing plan, monitoring and reporting, and, where applicable, supervising any contracted administrative agent.
[Added 5-31-2022 by Ord. No. 2022-12]
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 by other sources recognized and approved by the court.
[Amended 5-31-2022 by Ord. No. 2022-12]
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.
[1]
Editor's Note: The provisions of N.J.A.C. 5:93 expired 10-16-2016.
[2]
Editor's Note: The provisions of N.J.A.C. 5:96 and 5:97 expired 6-2-2015.
[3]
Editor's Note: The provisions of N.J.A.C. 5:96 and 5:97 expired 6-2-2015.
[4]
Editor's Note: The provisions of N.J.A.C. 5:93 expired 10-16-2016.
[5]
Editor's Note: The provisions of N.J.A.C. 5:96 and 5:97 expired 6-2-2015.
[6]
Editor's Note: The provisions of N.J.A.C. 5:96 and 5:97 expired 6-2-2015.
[7]
Editor's Note: The provisions of N.J.A.C. 5:96 and 5:97 expired 6-2-2015
Eastampton Township has determined that it will use the following mechanisms to satisfy its affordable housing obligations:
A. 
A rehabilitation program.
(1) 
Eastampton Township's rehabilitation program shall be designed to renovate deficient housing units occupied by very-low-, low- and moderate-income households, such that, after rehabilitation, these units will comply with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28.
[Amended 5-31-2022 by Ord. No. 2022-12]
(2) 
Both owner-occupied and renter-occupied units shall be eligible for rehabilitation funds. Burlington County presently offers a rehabilitation program that is available only to owner-occupied units.
(3) 
All rehabilitated units shall remain affordable to low- and moderate-income households for a period of 10 years (the control period). For owner-occupied units the control period will be enforced with a lien, and, for renter-occupied units, the control period will be enforced with a deed restriction.
(4) 
Eastampton Township shall dedicate a minimum of $10,000, which may be increased from time to time as indicated in an approved spending plan, for each unit to be rehabilitated through this program, reflecting the minimum hard cost of rehabilitation for each unit.
[Amended 5-31-2022 by Ord. No. 2022-12]
(5) 
Eastampton Township shall designate, subject to the approval of COAH, or the court, one or more administrative agents to administer the rehabilitation program in accordance with N.J.A.C. 5:96 and 5:97.[1] The administrative agent(s) shall provide a rehabilitation manual for the owner-occupancy rehabilitation program and a rehabilitation manual for the rental occupancy rehabilitation program to be adopted by resolution of the governing body and subject to approval of COAH. Both rehabilitation manuals shall be available for public inspection in the office of the Municipal Clerk and in the office(s) of the administrative agent(s).
[Amended 5-31-2022 by Ord. No. 2022-12]
[1]
Editor's Note: The provisions of N.J.A.C. 5:96 and 5:97 expired 6-2-2015.
(6) 
Units in a rehabilitation program shall be exempt from N.J.A.C. 5:97-9 and Uniform Housing Affordability Controls (UHAC), but shall be administered in accordance with the following:
(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. 5:97-9 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. 5:97-9 and UHAC.
(c) 
Rents in rehabilitated units may increase annually based on the standards in N.J.A.C. 5:97-9.
(d) 
Applicant and/or tenant households shall be certified as income-eligible in accordance with N.J.A.C. 5:97-9 and UHAC, except that households in owner-occupied units shall be exempt from the regional asset limit.
[Amended 10-9-2018 by Ord. No. 2018-16; 5-31-2022 by Ord. No. 2022-12]
The following general guidelines apply to all newly constructed developments that contain very-low-, low- and moderate-income housing units, including any currently unanticipated future developments that will provide very-low-, low- and moderate-income housing units.
A. 
Very low/low/moderate split and bedroom distribution of affordable housing units:
(1) 
The fair share obligation shall be divided equally between low- (including very-low-) and moderate-income units, except that, where there is an odd number of affordable housing units, the extra unit shall be a low-income unit. At least 13% of the restricted units within each bedroom distribution shall be very-low-income units. The very-low-income units shall be counted as part of the required number of low-income units within the development.
(2) 
In each affordable development, at least 50% of the restricted units within each bedroom distribution shall be low-income units (including very-low).
(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 very-low-, low- and moderate-income units;
(b) 
At least 30% of all very-low-, low- and moderate-income units shall be two-bedroom units;
(c) 
At least 20% of all very-low-, low- and moderate-income units shall be three-bedroom units; and
(d) 
The remaining units may be allocated among two- and three-bedroom units at the discretion of the developer.
(4) 
Affordable developments that are age-restricted shall be structured such that the number of bedrooms shall equal the number of age-restricted low- and moderate-income units within the inclusionary development. The standard may be met by having all one-bedroom units or by having a two-bedroom unit for each efficiency unit.
B. 
Accessibility requirements:
(1) 
The first floor of all restricted townhouse dwelling units and all restricted units in all other multistory buildings shall be subject to the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7 and 5:97-3.14.
(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, and N.J.A.C. 5:97-3.14, or evidence that Eastampton Township has collected funds from the developer sufficient to make 10% of the adaptable entrances in the development accessible:
[1] 
Where a unit has been constructed with an adaptable entrance, upon the request of a disabled person who is purchasing or will reside in the dwelling unit, an accessible entrance shall be installed.
[2] 
To this end, the builder of restricted units shall deposit funds within the Eastampton Township's affordable housing trust fund sufficient to install accessible entrances in 10% of the affordable units that have been constructed with adaptable entrances.
[3] 
The funds deposited under Subsection B(2)(f)[2] above shall be used by Eastampton Township 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 Eastampton Township.
[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 N.J.A.C. 5:97-3.14, and that the cost estimate of such conversion is reasonable, payment shall be made to Eastampton Township's Affordable Housing Trust Fund in care of the Municipal Director of Finance and/or his/her designee who shall ensure that the funds are deposited into the Affordable Housing Trust Fund and appropriately earmarked.
[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, and N.J.A.C. 5:97-3.14.
C. 
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 the Uniform Housing Affordability Controls Act (UHAC) and in COAH rules, utilizing the regional income limits established by COAH, or by other sources recognized and approved by the court and detailed below.
(a) 
Regional income limits shall be established for the region in which the Township is located (i.e., Region 5) 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 a 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. The income limits calculated each year shall be the result of applying the percentages set forth above to HUD's determination of median income for the relevant fiscal year, and shall be utilized until the Township updates the income limits after HUD has published revised determinations of median income for the next fiscal year. 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 Subsection C(1)(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.
(2) 
The maximum rent for restricted rental units within each affordable development shall be affordable to households earning no more than 60% of median income, and the average rent for restricted rental units shall be affordable to households earning no more than 52% of median income.
(3) 
The developers and/or municipal sponsors of restricted rental units shall establish at least one rent for each bedroom type for both low-income and moderate-income units, provided that at least 13% of all low- and moderate-income rental units shall be affordable to very-low-income households earning no more than 30% of 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 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 sales prices for each bedroom type. Low-income ownership units must be available for at least two different sales 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) 
(Reserved)
(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.
D. 
Construction phasing of market-rate and affordable housing units.
(1) 
The construction phasing of the market-rate and affordable housing units shall comply with the following requirements:
Minimum Percentage of Market-Rate Units Completed
Minimum Percentage of Affordable Units Completed
25%
0%
25%, plus 1 unit
10%
50%
50%
75%
75%
90%
100%
(2) 
A unit shall be deemed complete when its certificate of occupancy has been issued.
E. 
Design.
(1) 
In inclusionary developments, to the extent possible, very-low-, low- and moderate-income housing units shall be integrated with the market-rate housing units. The affordable units shall not be concentrated in separate building(s) or in separate area(s) from the market-rate units. In buildings with multiple dwelling units, this shall mean that the affordable units shall be generally distributed within each building with market-rate units. The affordable units shall also be of the same type as the market-rate units (e.g., if the market-rate units are non-age-restricted family units, the affordable units shall be non-age-restricted family units as well).
(2) 
In inclusionary developments, very-low-, low- and moderate-income housing units shall have access to all of the same common elements and facilities as the market-rate housing units. The residents of the affordable units shall have full and equal access to all of the amenities, common areas, and recreation areas and facilities as the residents of the market-rate units.
F. 
Utilities.
(1) 
Affordable housing units shall utilize the same type of heating source as market-rate housing units within an inclusionary development.
A. 
Eastampton Township shall adopt by resolution an affirmative marketing plan, subject to approval of COAH, or the court, compliant with N.J.A.C. 5:80-26.15, as may be amended and supplemented. The affirmative marketing shall ensure that all affordable units are posted on the New Jersey Housing Resource Center website in accordance with applicable law and that direct notice of availabilities are provided to the regional and community organizations identified in the Township's settlement with Fair Share Housing Center.
[Amended 5-31-2022 by Ord. No. 2022-12]
B. 
The affirmative marketing plan shall provide a regional preference for all households that live and/or work in COAH Housing Region 5 consisting of Burlington, Camden and Gloucester Counties.
[Amended 5-31-2022 by Ord. No. 2022-12]
C. 
The affirmative marketing plan shall provide a regional preference for all households that live and/or work in COAH Housing Region 5 comprised of Burlington, Camden and Gloucester counties.
D. 
The administrative agent designated by Eastampton Township 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 Eastampton Township.
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.
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 article until Eastampton Township 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 article, 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 article 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.
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.
A. 
Buyer income eligibility for restricted ownership units shall be in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented, such that low-income ownership units shall be reserved for households with a gross household income less than or equal to 50% of median income, and moderate-income ownership units shall be reserved for households with a gross household income less than 80% of median income.
B. 
The administrative agent shall certify a household as eligible for a restricted ownership unit when the household is a low-income household or a moderate-income household, as applicable to the unit, and the estimated monthly housing cost for the particular unit (including principal, interest, taxes, homeowner and private mortgage insurance and condominium or homeowner association fees, as applicable) does not exceed 33% of the household's certified monthly income.
A. 
Prior to incurring any indebtedness to be secured by a restricted ownership unit, the administrative agent shall determine in writing that the proposed indebtedness complies with the provisions of this section.
B. 
With the exception of original purchase money mortgages, during a control period neither an owner nor a lender shall at any time cause or permit the total indebtedness secured by a restricted ownership unit to exceed 95% of the maximum allowable resale price of that unit, as such price is determined by the administrative agent in accordance with N.J.A.C. 5:80-26.6(b).
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 Eastampton Township 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 Burlington. 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.
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.
A. 
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13, as may be amended and supplemented, and shall be determined as follows:
(1) 
Very-low-income rental units shall be reserved for households with a gross household income less than or equal to 30% of median income.
(2) 
Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of median income.
(3) 
Moderate-income rental units shall be reserved for households with a gross household income less than 80% of median income.
B. 
The administrative agent shall certify a household as eligible for a restricted rental unit when the household is a very-low-income, low-income household or a moderate-income household, as applicable to the unit, and the rent proposed for the unit does not exceed 35% (40% for age-restricted units) of the household's eligible monthly income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended and supplemented; provided, however, that this limit may be exceeded if one or more of the following circumstances exists:
(1) 
The household currently pays more than 35% (40% for households eligible for age-restricted units) of its gross household income for rent, and the proposed rent will reduce its housing costs;
(2) 
The household has consistently paid more than 35% (40% for households eligible for age-restricted units) of eligible monthly income for rent in the past and has proven its ability to pay;
(3) 
The household is currently in substandard or overcrowded living conditions;
(4) 
The household documents the existence of assets with which the household proposes to supplement the rent payments; or
(5) 
The household documents proposed third-party assistance from an outside source such as a family member in a form acceptable to the administrative agent and the owner of the unit.
C. 
The applicant shall file documentation sufficient to establish the existence of the circumstances in Subsection B(1) through (5) above with the administrative agent, who shall counsel the household on budgeting.
A. 
The position of Municipal Housing Liaison (MHL) for Eastampton Township is established by this article. The Township Council 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 Eastampton Township.
(2) 
The person appointed as the MHL must be reported to COAH, or the court, for approval.
[Amended 5-31-2022 by Ord. No. 2022-12]
(3) 
The MHL must meet all COAH requirements for qualifications, including initial and periodic training.
(4) 
The Municipal Housing Liaison shall be responsible for oversight and administration of the affordable housing program for Eastampton Township, including the following responsibilities which may not be contracted out to the administrative agent:
(a) 
Serving as the municipality's primary point of contact for all inquiries from the State, affordable housing providers, administrative agents and interested households;
(b) 
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 Eastampton Township's Fair Share Plan;
(e) 
Compiling, verifying and submitting annual reports as required by COAH;
(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 COAH.
B. 
The Township of Eastampton shall designate by resolution of the Township, subject to the approval of COAH, or the court, one or more administrative agents to administer newly constructed affordable housing units in accordance with N.J.A.C. 5:96 and 5:97, and UHAC.
[Amended 5-31-2022 by Ord. No. 2022-12]
C. 
An operating manual shall be provided by the administrative agent(s) to be adopted by resolution of the governing body and subject to approval of COAH, or the court. The operating manuals shall be available for public inspection in the office of the Municipal Clerk and in the office(s) of the administrative agent(s).
[Amended 5-31-2022 by Ord. No. 2022-12]
D. 
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, 26.16 and 26.18 thereof, which includes:
(1) 
Attending continuing education opportunities on affordability controls, compliance monitoring, and affirmative marketing as offered or approved by COAH, or by other entities recognized and approved by the court;
[Amended 5-31-2022 by Ord. No. 2022-12]
(2) 
Affirmative marketing;
(3) 
Household certification;
(4) 
Affordability controls;
(5) 
Records retention;
(6) 
Resale and re-rental;
(7) 
Processing requests from unit owners; and
(8) 
Enforcement, though the ultimate responsibility for retaining controls on the units rests with the municipality.
(9) 
The administrative agent shall have authority to take all actions necessary and appropriate to carry out its responsibilities hereunder.
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 Eastampton 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 municipality.
E. 
Foreclosure by the municipality due to violation of the regulations governing affordable housing units shall not extinguish the restrictions of the regulations governing affordable housing units as the same apply to the low- and moderate-income unit. Title shall be conveyed to the purchaser at the 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.
I. 
Mandatory affordable housing set-aside.
[Added 2-28-2022 by Ord. No. 2022-1]
(1) 
Background. The State of New Jersey has a long-standing and well-established commitment to maximizing the opportunities for the development of housing affordable for very-low-, low-, and moderate-income households.
The provision of "safe, decent and attractive housing that [lower-income households] can afford serves the community's interest in achieving an integrated, just and free society and promotes the general welfare of all citizens." De Simone v. Greater Englewood Hous. Corp., 56 N.J. 428, 441 (1970).
Notably, in the Mount Laurel decisions, the New Jersey Supreme Court held that the state's Constitution makes it "plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation." S. Burlington Cty. NAACP v. Mount Laurel, 67 N.J. 151, 179 (1975) (Mount Laurel I).
The Court thus found that "each . . . municipality [must] affirmatively . . . plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries." S. Burlington Cty. NAACP v. Mount Laurel, 67 N.J. 151, 179 (1975) (Mount Laurel I).
The New Jersey Legislature itself affirmed this commitment when it enacted the Fair Housing Act of 1985, which established that it is in the state's interest "to maximize the number of low and moderate income units by creating new affordable housing and by rehabilitating existing, but substandard, housing in the State." N.J.S.A. 52:27D-302.
Accordingly, the New Jersey Supreme Court has determined that "[a]ffordable housing is a goal that is no longer merely implicit in the notion of the general welfare. It has been expressly recognized as a governmental end and codified under the FHA." Holmdel Builders Ass'n v. Holmdel, 121 N.J. 550, 567 (1990).
Since then, New Jersey's courts have consistently recognized that "[t]he public policy of this State has long been that persons with low and moderate incomes are entitled to affordable housing," and furthermore that those policies do not end when a municipality has satisfied its minimum obligation under the FHA because "'[t]here cannot be the slightest doubt that shelter, along with food, are the most basic human needs.'" Homes of Hope, Inc. v. Eastampton Tp. Land Use Planning Bd., 409 N.J. Super. 330, 337 (App. Div. 2009) (quoting Mount Laurel I, 67 N.J. at 178).
(2) 
Affordable housing set-aside.
(a) 
A mandatory affordable housing set-aside requirement shall apply to any residential development, including the residential portion of a mixed-use project, which consists of five or more new residential units at six or more units per acre and that results from any use or density variance pursuant to N.J.S.A. 40:55D-70d.
(b) 
A mandatory affordable housing set-aside requirement shall apply to any residential development, including the residential portion of a mixed-use project, which consists of 50 or more new residential units at six or more units per acre that results from any rezoning or the adoption of a new or amended redevelopment/rehabilitation plan.
(c) 
The set-aside shall be 20% where the affordable units are provided for for-sale and 15% where the affordable units are provided for rental.
(3) 
Additional incentives for affordable housing. A developer subject to the mandatory affordable housing set-aside may request, and the appropriate approving authority may, at its discretion, grant, additional incentives for affordable housing, including, but not limited to, a density bonus, a reduction in the off-street parking spaces otherwise required, and/or a reduction in the minimum setback requirements.
(4) 
Other terms applicable. The following terms shall apply to any residential development subject to the mandatory affordable housing set-aside:
(a) 
All subdivision and site plan approvals of qualifying developments shall be conditioned upon compliance with the provisions of the mandatory affordable housing set-aside.
(b) 
No subdivision shall be permitted or approved for the purpose of avoiding compliance with the mandatory affordable housing set-aside. A developer may not, for example, subdivide a project into two lots and then plan each of them to produce a number of units below the threshold. The approving authority may impose any reasonable conditions to ensure such compliance.
(c) 
In the event the number of affordable housing units to be provided includes a fraction, the number shall be rounded up if the fractional amount is 0.5 or greater and rounded down if the fractional amount is less than 0.5. The developer shall provide a payment in lieu of constructing affordable units for the fraction of a unit less than 0.5. The payment in lieu shall be based on the amounts established in N.J.A.C. 5:97-6.4(c).
(d) 
All affordable units created shall fully comply with the Uniform Housing Affordability Controls, N.J.A.C. 5:80-26.1 et seq. ("UHAC"), including but not limited to the required bedroom and income distribution, with the sole exception that 13% of the affordable units shall be required to be restricted for very-low-income households earning 30% or less of the median income pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301 et seq. ("FHA").
(e) 
At least 50% of the affordable units within each bedroom distribution shall be affordable to low-income households, inclusive of the at least 13% of units affordable to very-low-income households.
(f) 
The very-low-income affordable units shall be proportionately distributed within each bedroom distribution. In a family non-age-restricted development, at no time shall the number of one-bedroom very-low-income units exceed the number of three-bedroom very-low-income units.
(g) 
Affordable units shall be integrated with the market-rate units on-site, and the affordable units shall not be concentrated in separate buildings or in separate areas from the market-rate units. In buildings with multiple dwelling units, this shall mean that the affordable units shall be generally distributed within each building with market-rate units. The affordable units shall also be of the same type as the market-rate units (e.g., if the market-rate units are non-age-restricted family units, the affordable units shall be non-age-restricted family units as well). The residents of the affordable units shall have full and equal access to all of the amenities, common areas, and recreation areas and facilities as the residents of the market-rate units.
(h) 
Affordable units shall be subject to affordability controls of at least 30 years from the date of initial occupancy and affordable deed restrictions as otherwise provided for by UHAC, with the sole exception that very low income shall be defined as at or below 30% of median income pursuant to the Fair Housing Act, and the affordability controls shall remain unless and until the municipality, in its sole discretion, takes action to extend or release the unit from such controls after at least 30 years.
(i) 
Construction of the affordable and market units shall be phased in compliance with N.J.A.C. 5:93-5.6(d).
(j) 
Affordable units shall be affirmatively marketed in accordance with UHAC and applicable law. The affirmative marketing shall include posting of all affordable units on the New Jersey Housing Resource Center website in accordance with applicable law.
(k) 
The mandatory affordable housing set-aside shall not give any developer the right to any rezoning, variance, redevelopment designation or redevelopment or rehabilitation plan approval, or any other such relief, or establish any obligation on the part of the municipality to grant such rezoning, variance, redevelopment designation, redevelopment or rehabilitation plan approval, or other such or further relief.
(l) 
No developer may make a payment in lieu of constructing affordable units on site, except for fractional units as noted above.
(m) 
Nothing herein precludes the municipality from imposing an affordable housing set-aside in a development not required to have a set-aside pursuant to these provisions.
(5) 
Severability. If any article, section, subsection, sentence, clause or phrase of this section is, for any reason, held by a court of competent jurisdiction to be unconstitutional or invalid, such decision shall not affect the remaining portions of this section, and they shall remain in full force and effect and shall be deemed valid and effective.
(6) 
Inconsistencies. In the event of any inconsistencies between the provisions of this section and any prior ordinance of the municipality, the provisions hereof shall be determined to govern, and those inconsistent provisions shall be repealed to the extent of such inconsistency.
(7) 
Referral to Land Use Board. A copy of this section shall be referred to the Land Use Board following its introduction for review pursuant to N.J.S.A. 40A:55D-26a.
(8) 
Effective date and scope. This section shall take effect upon its passage and publication, filing with the Burlington County Planning Board, and as otherwise provided for by law. The provisions of this section shall be applicable within the entire municipality upon final adoption and shall become a part of the Code once completed and adopted.
Appeals from all decisions of an administrative agent designated pursuant to this article shall be filed in writing with the Executive Director of COAH.
A. 
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.
B. 
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 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 COAH-approved spending plan may retain fees collected from nonresidential development.
C. 
This article establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32 through 38.[1] Fees collected pursuant to this article shall be used for the sole purpose of providing low- and moderate-income housing. This article shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.
[1]
Editor's Note: See N.J.S.A. 52:27D-329.2 and N.J.S.A. 40:55D-8.1 through 40:55D-8.7, respectively.
[Amended 5-31-2022 by Ord. No. 2022-12]
A. 
This article shall not be effective until approved by the court or COAH[1] pursuant to N.J.A.C. 5:96-5.1.[2]
[1]
Editor's Note: The preamble of Ord. No. 2009-07 indicated that COAH granted the Township substantive certification on 5-14-2009.
[2]
Editor's Note: The provisions of N.J.A.C. 5:96 and 5:97 expired 6-2-2015.
B. 
Eastampton Township shall not spend development fees until the court or COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
The following terms, as used in this article, shall have the following meanings:
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.
COAH or THE COUNCIL
The New Jersey Council on Affordable Housing established under the Act which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the state.
DEVELOPER
The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.
EQUALIZED ASSESSED VALUE
The assessed value of a property divided by the current average ratio of assessed-to-true value for the municipality in which the property is situated, as determined in accordance with Sections 1, 5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
GREEN BUILDING STRATEGIES
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.
A. 
Imposed fees.
(1) 
Within the all zoning district(s), residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1.5% of the equalized assessed value for residential development, provided no increased density is permitted.
(2) 
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application. 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 the specified higher percentage up to 6% of the equalized assessed value for the two additional units, provided zoning on the site has not changed during the two-year period preceding the filing of such a variance application.
B. 
Eligible exactions, ineligible exactions and exemptions for residential development.
(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) 
Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.
(3) 
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.
(4) 
Developers of residential structures demolished and replaced as a result of a natural disaster shall be exempt from paying a development fee.
A. 
Imposed fees.
(1) 
Within all zoning districts, 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.
(2) 
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.
(3) 
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e. land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
B. 
Eligible exactions, ineligible exactions and exemptions for nonresidential development.
(1) 
The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to the development fee of 2.5%, unless otherwise exempted below.
(2) 
The fee of 2.5% shall not apply to an increase in equalized assessed value resulting from alterations, change in use within an existing footprint, reconstruction, renovations and repairs.
(3) 
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption." Any exemption claimed by a developer shall be substantiated by that developer.
(4) 
A developer of a nonresidential development exempted from the nonresidential development fee pursuant to P.L. 2008, c. 46, shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.
(5) 
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 Eastampton Township as a lien against the real property of the owner.
A. 
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 responsible for the issuance of a building permit.
B. 
For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Nonresidential 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.
C. 
The construction official responsible for the issuance of a building permit shall notify the local tax assessor of the issuance of the first building permit for a development which is subject to a development fee.
D. 
Within 90 days of receipt of that notice, the municipal tax assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.
E. 
The construction official responsible for the issuance of a final certificate of occupancy notifies the local assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.
F. 
Within 10 business days of a request for the scheduling of a final inspection, the municipal assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.
G. 
Should Eastampton 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).
H. 
Fifty percent of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at building permit and that determined at issuance of certificate of occupancy.
I. 
Appeal of development fees.
(1) 
A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by Eastampton Township. 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.
(2) 
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 Eastampton Township. 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.
A. 
There is hereby created a separate, interest-bearing housing trust fund to be maintained by the Chief Financial Officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
B. 
The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:
(1) 
Payments in lieu of on-site construction of affordable units;
(2) 
Developer-contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;
(3) 
Rental income from municipally operated units;
(4) 
Repayments from affordable housing program loans;
(5) 
Recapture funds;
(6) 
Proceeds from the sale of affordable units; and
(7) 
Any other funds collected in connection with Eastampton's affordable housing program.
(8) 
Interest income earned from funds of the Affordable Housing Trust Fund deposited in an interest-bearing bank account.
[Added 5-31-2022 by Ord. No. 2022-12]
C. 
(Reserved)[1]
[1]
Editor's Note: Former Subsection C, regarding written authorization for the disbursement of funds, was repealed 5-31-2022 by Ord. No. 2022-12.
D. 
All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by the court.
[Amended 5-31-2022 by Ord. No. 2022-12]
A. 
The expenditure of all funds shall conform to a spending plan approved by the court or COAH. Funds deposited in the housing trust fund may be used for any activity approved by the court or COAH to address the Eastampton Township's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to:
[Amended 5-31-2022 by Ord. No. 2022-12]
(1) 
Preservation or purchase of housing for the purpose of maintaining or implementing affordability controls;
(2) 
Rehabilitation;
(3) 
New construction of affordable housing units and related costs;
(4) 
Accessory apartment;
(5) 
Market to affordable, or regional housing partnership programs;
(6) 
Conversion of existing nonresidential buildings to create new affordable units;
(7) 
Green building strategies designed to be cost saving and in accordance with accepted national or state standards;
(8) 
Purchase of land for affordable housing;
(9) 
Improvement of land to be used for affordable housing;
(10) 
Extensions or improvements of roads and infrastructure to affordable housing sites;
(11) 
Financial assistance designed to increase affordability;
(12) 
Administration necessary for implementation of the Housing Element and Fair Share Plan; or
(13) 
Any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.
(14) 
Convert low- and moderate-income housing units into very-low-income housing units.
B. 
Funds shall not be expended to reimburse Eastampton Township for past housing activities.
C. 
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.
(1) 
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.
(2) 
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner may entitle the Township of Eastampton to bonus credits pursuant to N.J.A.C. 5:97-3.7.
(3) 
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.
D. 
Eastampton 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, in accordance with N.J.A.C. 5:96-18.
E. 
No more than 20% of all revenues collected from development fees, may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the Affordable Housing Trust Fund.
[Amended 5-31-2022 by Ord. No. 2022-12]
A. 
On September 13, 2022, and every anniversary thereafter, the Township shall provide annual reporting of trust fund activity to the New Jersey Department of Community Affairs, Council on Affordable Housing, or Local Government Services, or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center and posted on the municipal website, using forms developed for this purpose by the New Jersey Department of Community Affairs, Council on Affordable Housing, or Local Government Services. The reporting shall include an accounting of all housing trust fund activity, including the source and amount of funds collected and the amount and purpose for which any funds have been expended.
B. 
In the event of a failure of Eastampton to comply with trust fund monitoring and reporting requirements or to submit accurate monitoring reports, or a failure to implement the approved spending plan, or a failure to expend funds within the applicable time period as set forth in N.J.S.A. 52:27D-329.2d, or for other good cause demonstrating unapproved use(s) of funds, a motion may be brought before the Superior Court. The court may, after considering the evidence and providing the Township a reasonable opportunity to respond and/or remedy the noncompliant conditions, impose such remedies as may be reasonable and appropriate to the circumstances, including but not limited to authorizing the State of New Jersey, Department of Community Affairs, Division of Local Government Services, to direct the manner in which the funds shall be expended.
[Amended 5-31-2022 by Ord. No. 2022-12]
A. 
The ability for Eastampton Township to impose, collect and expend development fees shall expire with its substantive certification unless Eastampton Township has filed an adopted Housing Element and Fair Share Plan with the court or COAH and has petitioned for substantive certification. If Eastampton has petitioned for substantive certification, it may continue to impose and collect fees but it shall not expend such fees until its spending plan is approved by the court or COAH.
B. 
If Eastampton Township fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). Eastampton Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance unless and until its spending plan is approved by the court or COAH.