[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:
A self-contained residential dwelling unit with a kitchen,
sanitary facilities, sleeping quarters and a private entrance, which
is created within an existing home, or through the conversion of an
existing accessory structure on the same site, or by an addition to
an existing home or accessory building, or by the construction of
a new accessory structure on the same site.
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which restricted
units in an affordable housing development are affordable to very-low-,
low- and moderate-income households.
[Amended 5-31-2022 by Ord. No. 2022-12]
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]
A housing development all or a portion of which consists
of restricted units.
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a one-hundred-percent affordable
development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development where the unit is situated
are 62 years or older; or
At least 80% of the units are occupied by one person that is
55 years or older; or
The development has been designated by the Secretary of the
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.
A facility licensed by the New Jersey Department of Health
and Senior Services to provide apartment-style housing and congregate
dining and to assure that assisted-living services are available when
needed for four or more adult persons unrelated to the proprietor
and that offers units containing, at a minimum, one unfurnished room,
a private bathroom, a kitchenette and a lockable door on the unit
entrance.
A household that has been certified by an administrative
agent as a very-low-income household, low-income household or moderate-income
household.
[Amended 5-31-2022 by Ord. No. 2022-12]
The Council on Affordable Housing, which is in, but not of,
the Department of Community Affairs of the State of New Jersey, that
was established under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301
et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
require the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development, including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
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]
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]
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]
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]
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]
A development containing both affordable units and market-rate
units. This term includes, but is not necessarily limited to, new
construction, the conversion of a nonresidential structure to residential
and the creation of new affordable units through the reconstruction
of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the median household income.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building which
include, but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement or load-bearing structural systems.
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable county,
as adopted annually by 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]
A household with a total gross annual household income in
excess of 50% but less than 80% of the median household income.
A restricted unit that is affordable to a moderate-income
household.
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]
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class A
beneficiary; and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by 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]
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted-living residences, rent does
not include charges for food and services.
A dwelling unit, whether a rental unit or ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the median household income.
A restricted unit that is affordable to a very-low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for rehabilitation.
[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.
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:
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:
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.
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]
The following terms, as used in this article, shall have the
following meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a one-hundred-percent affordable
development.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed-to-true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
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]
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.
