[Added 3-13-2007 by Ord. No. 07-03; amended 7-11-2023 by Ord. No. 23-21]
A.
The Code of the City of Englewood is hereby amended to include provisions
addressing Englewood City's constitutional obligation to provide
for its fair share of very-low-, low- and moderate-income housing,
as directed by the Superior Court and consistent with N.J.A.C. 5:93-1
et seq.,[1] as amended and supplemented, N.J.A.C. 5:80-26.1 et seq.,
as amended and supplemented, and the New Jersey Fair Housing Act of
1985. This article is intended to assure that low- and moderate-income
units ("affordable units") are created with controls on affordability
and that low- and moderate-income households shall occupy these units.
This article shall apply except where inconsistent with applicable
law.
[1]
Editor's Note: N.J.A.C. 5:93 expired October 16, 2016.
B.
The Englewood City 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. and settlement agreement as approved by the Court
In the Matter of the Application of the City of Englewood for Judgement
of Compliance and Repose, County of Bergen, Docket Number BER-L-4069-19
(hereinafter "Fair Share Plan"). The Fair Share Plan was subsequently
endorsed by the governing body. The Fair Share Plan describes how
the City of Englewood shall address its fair share of low- and moderate-income
housing as documented in the Fair Share Plan itself, the settlement
agreement entered into by and between the City and Fair Share Housing
Center ("FSHC") on November 2, 2022 (hereinafter "Settlement") and
the Court order approving same dated January 20, 2023, after a properly
noticed fairness hearing.
C.
This article implements and incorporates the City's Housing
Element and Fair Share Plan and addresses the requirements of N.J.A.C.
5:93-1 et seq., as amended and supplemented, N.J.A.C. 5:80-26.1 et
seq., as amended and supplemented, and the New Jersey Fair Housing
Act of 1985.
D.
The provisions of this article shall apply to all affordable housing
developments and affordable housing units that currently exist and
that are proposed to be created within the City of Englewood pursuant
to the City's most recently adopted Housing Element and Fair
Share Plan.
E.
Moreover, this article shall apply to all 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 and including any developments funded
with low-income housing tax credits.
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.
The entity designated by the City for the administration
of affordable units in accordance with this article, N.J.A.C. 5:93,[1] and UHAC (N.J.A.C. 5:80-26).
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.
A sales price or rent level that is within the means of a
very-low-, low- or moderate-income household as defined in N.J.A.C.
5:93-7.4,[2] and, in the case of an ownership unit, that the sales
price for the unit conforms to the standards set forth in N.J.A.C.
5:80-26.6, as may be amended and supplemented, and, in the case of
a rental unit, that the rent for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A housing development all or a portion of which consists
of restricted units.
A development included in or approved pursuant to the Housing
Plan Element And Fair Share Plan or otherwise intended to address
the City's fair share obligation, and includes, but is not limited
to, an inclusionary development, a municipal construction project
or a 100% affordable housing development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act and
approved for crediting by the Court and/or funded through an affordable
housing trust fund.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that: 1) all the residents of the development where the unit
is situated are 62 years or older; or 2) at least 80% of the units
are occupied by one person that is 55 years or older; or 3) the development
has been designated by the Secretary of the U.S. Department of Housing
and Urban Development as "housing for older persons" as defined in
Section 807(b)(2) of the Fair Housing Act, 42 U.S.C. § 3607.
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 structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include but are not limited
to: transitional facilities for the homeless; Class A, B, C, D, and
E boarding homes as regulated by the New Jersey Department of Community
Affairs; residential health care facilities as regulated by the New
Jersey Department of Health; group homes for the developmentally disabled
and mentally ill as licensed and/or regulated by the New Jersey Department
of Human Services; and congregate living arrangements.
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-, low-household or moderate-income household.
The New Jersey Council on Affordable Housing 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 authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27D-301
et seq., and regulated by applicable COAH Rules.
The assessed value of a property divided by the current average
ration 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 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 use and the creation of new affordable units through the
gut rehabilitation or reconstruction of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the regional median household income by household
size for the applicable housing region.
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 very-low-, low- and moderate-income
households that may sell or rent at any price.
The median income by household size for the applicable housing
region, as adopted annually by COAH or a successor entity approved
by the Court.
A household with a total gross annual household income in
excess of 50% but less than 80% of the regional median household income
by household size for the applicable housing region.
A restricted unit that is affordable to a moderate-income
household.
An appointed municipal employee who is responsible for oversight
of the municipal affordable housing program, including overseeing
the administration of affordability controls, the Affirmative Marketing
Plan, monitoring and reporting, and supervising any contracted administrative
agent.
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 duly adopted regional income limits published annually
by COAH or a successor entity approved by the Court.
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. et seq.
A household with a total gross annual household income equal
to 30% or less of the regional median household income by household
size for the applicable housing region.
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 purposes of the rehabilitation
program.
The City of Englewood shall comply with the following monitoring
and reporting requirements regarding the status of the implementation
of its Court-approved Housing Element and Fair Share Plan:
A.
Beginning one year after the Court's approval of the Spending
Plan, and on every anniversary of that date through July 1, 2025,
the City agrees to provide annual reporting of its Affordable Housing
Trust Fund activity to the New Jersey Department of Community Affairs,
Council on Affordable Housing, or Local Government Services, or other
entity designated by the State of New Jersey, with a copy provided
to Fair Share Housing Center (FSHC) and posted on the municipal website,
using forms developed for this purpose by the New Jersey Department
of Community Affairs (NJDCA), Council on Affordable Housing (COAH),
or Local Government Services (NJLGS). The reporting shall include
an accounting of all Affordable Housing Trust Fund activity, including
the source and amount of funds collected and the amount and purpose
for which any funds have been expended.
(1)
Beginning one year after the Judgment of Compliance and Repose
on November 1, 2023, and on every anniversary of that date through
July 1, 2025, the City 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 COAH, or any other forms endorsed by the Court-appointed
Special Master and FSHC.
(2)
The Fair Housing Act includes two provisions regarding action
to be taken by the City during its ten-year repose period. Pursuant
to the settlement agreement with FSHC, the City will comply with those
provisions as follows:
(a)
For the midpoint realistic opportunity review due on February
1, 2024, as required pursuant to N.J.S.A. 52:27D-313, the City will
post on its municipal website, with a copy provided to Fair Share
Housing Center, a status report as to its implementation of its Plan
and an analysis of whether any unbuilt sites or unfulfilled mechanisms
continue to present a realistic opportunity and if there are changed
circumstances whether the mechanisms to meet unmet need should be
revised or supplemented. Such posting shall invite any interested
party to submit comments to the City, with a copy to Fair Share Housing
Center, 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.
(b)
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 City's agreement with FSHC, and every third year thereafter,
the City 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. Such posting shall invite any interested party to submit
comments to the City and Fair Share Housing Center on the issue of
whether the City has complied with its very-low-income housing obligation
under the terms of the City's agreement with FSHC.
(c)
In addition to the foregoing postings, the City may also elect
to file copies of its reports with COAH or its successor agency at
the state level.
A.
Alternative living arrangements.
(1)
The administration of an alternative living arrangement shall
be in compliance with N.J.A.C. 5:93-5.8[1] and UHAC, with the following exceptions:
(a)
Affirmative marketing (N.J.A.C. 5:80-26.15); provided, however,
that the units or bedrooms may be affirmatively marketed by the provider
in accordance with an alternative plan approved by the state licensing/funding
agency (i.e., DHS);
(b)
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
[1]
Editor's Note: N.J.A.C. 5:93 expired October 16, 2016.
(2)
With the exception of units established with capital funding
through a twenty-year operating contract with the Department of Human
Services, Division of Developmental Disabilities, alternative living
arrangements shall have at least thirty-year controls on affordability
in accordance with UHAC, unless an alternative commitment is approved
by the Court.
(3)
The service provider for the alternative living arrangement
shall act as the administrative agent for the purposes of administering
the affirmative marketing and affordability requirements for the alternative
living arrangement.
B.
Set aside. For inclusionary projects in which the very-low-, low-
and moderate-income units are to be offered, the appropriate set-aside
percentage is 20%, whether for sale or rent.
C.
Phasing schedule for inclusionary development. In inclusionary developments
the following schedule shall be followed:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percentage of Low- and Moderate-Income Units Completed
|
|---|---|
|
25
|
0
|
|
25 + 1 Unit
|
10
|
|
50
|
50
|
|
75
|
75
|
|
90
|
100
|
D.
New construction requirements.
(1)
Low/Moderate Split and Bedroom Distribution of Affordable Housing
Units:
(a)
The fair share obligation shall be divided equally between low-
and moderate-income units, except that where there is an odd number
of affordable housing units, the extra unit shall be a low-income
unit. At least 13% of all restricted units within each bedroom distribution
shall be very-low-income units (affordable to a household earning
30% or less of regional median income by household size). The very-low-income
units shall be counted as part of the required number of low-income
units within the development. At least 50% of the very-low-income
units must be available to families.
(b)
In each affordable development, at least 50% of the restricted
units within each bedroom distribution shall be very-low- or low-income
units.
(c)
Affordable developments that are not age-restricted shall be
structured in conjunction with realistic market demands such that:
[1]
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
[2]
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
[3]
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
[4]
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
[5]
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.
This standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
(2)
Accessibility requirements:
(a)
The first floor of all restricted townhouse dwelling units and
all restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7, and the following:
(b)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
[1]
An adaptable toilet and bathing facility on the first floor;
and
[2]
An adaptable kitchen on the first floor; and
[3]
An interior accessible route of travel on the first floor; and
[4]
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
[5]
If all of the foregoing requirements in Subsection D(2)(b)[1] through cannot be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the terms of Subsection D(2)(b)[1] through above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit; and
[6]
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that Englewood has collected funds from the developer
sufficient to make 10% of the adaptable entrances in the development
accessible:
[a]
Where a unit has been constructed with an adaptable
entrance, upon the request of a disabled person who is purchasing
or will reside in the dwelling unit, an accessible entrance shall
be installed.
[b]
To this end, the builder of income-restricted units
shall deposit funds within the City of Englewood's Affordable
Housing Trust Fund sufficient to install accessible entrances in 10%
of the affordable units that have been constructed with adaptable
entrances.
[c]
The funds deposited under Subsection D(2)(b)[6][b] above shall be used by the City of Englewood for the sole purpose of making the adaptable entrance of an affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[d]
The developer of the restricted units shall submit
a design plan and cost estimate to the Construction Official of the
City of Englewood for the conversion of adaptable to accessible entrances.
[e]
Once the Construction Official has determined that
the design plan to convert the unit entrances from adaptable to accessible
meet the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7,
and that the cost estimate of such conversion is reasonable, payment
shall be made to the City's Affordable Housing Trust Fund in
the care of the City Treasurer who shall ensure that the funds are
deposited into the Affordable Housing Trust Fund and appropriately
earmarked.
[f]
Full compliance with the foregoing provisions shall
not be required where an entity can demonstrate that it is site impracticable
to meet the requirements. Determinations of site impracticability
shall be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7
and N.J.A.C. 5:97-3.14.[2]
[2]
Editor's Note: N.J.A.C. 5:97 is reserved.
(3)
Design:
(a)
In inclusionary developments, to the extent possible, very-low-,
low- and moderate-income units shall be integrated with the market
units, not situated so as to be concentrated in separate building(s)
or in separate area(s) or floor(s), or in less desirable locations,
than the other units in the development. In buildings with multiple
dwelling units, this shall mean that the very-low-, low-, and moderate-income
units shall be generally distributed within each building with market
units.
(b)
In inclusionary developments, 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 units.
(c)
In inclusionary developments, the very-low-, low- and moderate-income
units shall be no less than the largest minimum bedroom and unit square
footages required under the DCA Balanced Housing and HMFA Low Income
Housing Tax Credit program for bedroom sizes and unit sizes in affordable
units of the same bedroom number.
(4)
Maximum rents and sales prices:
(a)
In establishing rents and sales prices of affordable housing
units, the administrative agent shall follow the procedures set forth
in UHAC, utilizing the most recently published regional weighted average
of the uncapped Section 8 income limits published by HUD and the calculation
procedures as approved by the Court and detailed below:
[1]
Regional income limits shall be established for the region in
which the City is located (in this case, Region 1) 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 City'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. In no event shall the income limits be less than those for the
previous year.
[2]
The income limits are the result of applying the percentages set forth in Subsection D(4)(a)[1] above to HUD's determination of median income for the current fiscal year, and shall be utilized until the City updates the income limits after HUD has published revised determinations of median income for the next fiscal year.
[3]
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 City annually by taking the percentage increase of the income limits calculated pursuant to Subsection D(4)(a)[1] 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.
[4]
In establishing sale prices and rents of affordable housing
units, the administrative agent shall follow the procedures set forth
in UHAC, utilizing the regional income limits established pursuant
to the process defined above.
[a]
The resale prices of owner-occupied very-low-,
low- and moderate-income units may increase annually based on the
percentage increase in the regional median income limit for each housing
region determined pursuant to the above methodology. In no event shall
the maximum resale price established by the administrative agent be
lower than the last recorded purchase price.
[b]
The rent levels of very-low-, low- and moderate-income
units may be increased annually based on the percentage increase in
the Housing Consumer Price Index for the Northeast Urban Area, upon
its publication for the prior calendar year. 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.
(b)
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted rental units
shall be affordable to households earning no more than 52% of median
income.
(c)
The developers and/or municipal sponsors of restricted rental
units shall establish at least one rent for each bedroom type for
both 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,
which very-low-income units shall be part of the low-income requirement.
(d)
The maximum sales price of restricted ownership units within
each affordable development shall be affordable to households earning
no more than 70% of median income, and each affordable development
must achieve an affordability average of 55% for restricted ownership
units; in achieving this affordability average, moderate-income ownership
units must be available for at least three different sales prices
for each bedroom type, and low-income ownership units must be available
for at least two different sales prices for each bedroom type.
(e)
In determining the initial sales prices and rent levels for
compliance with the affordability average requirements for restricted
units other than assisted living facilities and age-restricted developments,
the following standards shall be used:
[1]
A studio shall be affordable to a one-person household;
[2]
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
[3]
A two-bedroom unit shall be affordable to a three-person household;
[4]
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
[5]
A four-bedroom unit shall be affordable to a six-person household.
(f)
In determining the initial sales prices and rents for compliance
with affordability average requirements for restricted units in assisted
living facilities and age-restricted developments the following standards
shall be used:
(g)
The initial purchase price for all restricted ownership units
shall be calculated so that the monthly carrying cost of the unit,
including principal and interest (based on a mortgage loan equal to
95% of the purchase price and the Federal Reserve H.15 rate of interest),
taxes, homeowner and private mortgage insurance and condominium or
homeowners' association fees do not exceed 28% of the eligible
monthly income of the appropriate size household as determined under
N.J.A.C. 5:80-26.4, as may be amended and supplemented; provided,
however, that the price shall be subject to the affordability average
requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(h)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
size household, including an allowance for tenant-paid utilities,
as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented;
provided, however, that the rent shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(i)
The price of owner-occupied low- and moderate-income units may
increase annually based on the percentage increase in the regional
median income limit for each housing region. In no event shall the
maximum resale price established by the administrative agent be lower
than the last recorded purchase price.
(j)
The rent of very-low-, low- and moderate-income units may be
increased annually based on the permitted 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.
E.
Utilities.
(1)
Affordable units shall utilize the same type of heating source
as market units within an inclusionary development.
(2)
Tenant-paid utilities included in the utility allowance shall
be set forth in the lease and shall be consistent with the utility
allowance approved by the NJDCA for its Section 8 program.
F.
Occupancy standards. In referring certified households to specific
restricted units, the administrative agent shall, to the extent feasible
and without causing an undue delay in the occupancy of a unit, strive
to:
G.
Control periods for restricted ownership units and enforcement mechanisms.
(1)
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 for a period of at least 30 years, until Englewood
takes action to release the unit from such requirements; prior to
such action, 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.
(2)
The affordability control period for a restricted ownership
unit shall commence on the date the initial certified household takes
title to the unit.
(3)
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, or an
administrative agent appointed by a particular developer, 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 without the restrictions in place.
(4)
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the administrative agent, or an administrative
agent appointed by a particular developer, 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 restrictions set forth in 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.
(5)
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.
(6)
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 following the removal of the restrictions provided
under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
H.
Price restrictions for restricted ownership units, homeowner association
fees and resale prices. Price restrictions for restricted ownership
units shall be in accordance with N.J.A.C. 5:80-26.1, as may be amended
and supplemented, including:
(1)
The initial purchase price for a restricted ownership unit shall
be approved by the administrative agent, or an administrative agent
appointed by a particular developer.
(2)
The administrative agent, or an administrative agent appointed
by a particular developer, shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
(3)
The master deeds of inclusionary developments shall provide
no distinction between the condominium or homeowner association fees
and special assessments paid by low- and moderate-income purchasers
and those paid by market purchasers.
(4)
The owners of restricted ownership units may apply to the administrative
agent, or an administrative agent appointed by a particular developer,
to increase the maximum sales price for the unit on the basis of anticipated
capital improvements. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
I.
Buyer income eligibility.
(1)
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. Very-low-income
units shall be reserved for households with a gross household income
of less than 30% of median income.
(2)
Notwithstanding the foregoing, the administrative agent may,
upon approval by the City Council, and subject to the Court's
approval, permit a moderate-income purchaser to buy a low-income unit
if and only if the administrative agent can demonstrate that there
is an insufficient number of eligible low-income purchasers in the
housing region to permit prompt occupancy of the unit and all other
reasonable efforts to attract a low-income purchaser, including pricing
and financing incentives, have failed. Any such low-income unit that
is sold to a moderate-income household shall retain the required pricing
and pricing restrictions for a low-income unit.
(3)
A certified household that purchases a restricted ownership
unit must occupy it as the certified household's principal residence
and shall not lease the unit; provided, however, that the administrative
agent may permit the owner of a restricted ownership unit, upon application
and a showing of hardship, to lease the restricted unit to another
certified household for a period not to exceed one year.
(4)
The administrative agent shall certify a household as eligible
for a restricted ownership unit when the household is a very-low-income
household, 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 eligible
monthly income.
J.
Limitations on indebtedness secured by ownership unit; subordination.
(1)
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the owner shall apply to the administrative agent,
or an administrative agent appointed by a particular developer, for
a determination, in writing, that the proposed indebtedness complies
with the provisions of this section, and the administrative agent,
or an administrative agent appointed by a particular developer, shall
issue such determination prior to the owner incurring such indebtedness.
(2)
With the exception of first purchase money mortgages, 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 the unit, as such price is
determined by the administrative agent, or an administrative agent
appointed by a particular developer, in accordance with N.J.A.C. 5:80-26.6(b).
K.
Capital improvements to ownership units.
(1)
The owners of restricted ownership units may apply to the administrative
agent, or an administrative agent appointed by a particular developer,
to increase the maximum sales price for the unit on the basis of capital
improvements made since the purchase of the unit. Eligible capital
improvements shall be those that render the unit suitable for a larger
household or that add an additional bathroom. In no event shall the
maximum sales price of an improved housing unit exceed the limits
of affordability for the larger household.
(2)
Upon the resale of a restricted ownership unit, all items of
property that are permanently affixed to the unit or were included
when the unit was initially restricted (for example, refrigerator,
range, washer, dryer, dishwasher, wall-to-wall carpeting) shall be
included in the maximum allowable resale price. Other items may be
sold to the purchaser at a reasonable price that has been approved
by the administrative agent, or an administrative agent appointed
by a particular developer, at the time of the signing of the agreement
to purchase. The purchase of central air conditioning installed subsequent
to the initial sale of the unit, and not included in the base price,
may be made a condition of the unit resale, provided the price, which
shall be subject to ten-year, straight-line depreciation, has been
approved by the administrative agent, or an administrative agent appointed
by a particular developer. Unless otherwise approved by the administrative
agent, or an administrative agent appointed by a particular developer,
the purchase of any property other than central air conditioning shall
not be made a condition of the unit resale. The owner and the purchaser
must personally certify at the time of closing that no unapproved
transfer of funds for the purpose of selling and receiving property
has taken place at the time of or as a condition of resale.
L.
Control periods for restricted rental units.
(1)
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 for a period of at least 30 years, until Englewood
takes action to release the unit from such requirements. Prior to
such action, 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.
(2)
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 recorded by the developer or seller with the records office
of the County of Bergen. A copy of the filed, recorded document shall
be provided to the administrative agent within 30 days of the receipt
of a certificate of occupancy.
(3)
A restricted rental unit shall remain subject to the affordability
controls of this article despite the occurrence of any of the following
events:
M.
Rent restrictions for rental units; leases.
(1)
A written lease shall be required for all restricted rental
units, except for units in assisted living residences, 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,
or an administrative agent appointed by a particular developer.
(2)
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, or an administrative
agent appointed by a particular developer.
(3)
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, or an administrative
agent appointed by a particular developer to be applied to the costs
of administering the controls applicable to the unit as set forth
in this article.
N.
Tenant income eligibility.
(1)
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:
(a)
Very-low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of the regional
median household income by household size.
(b)
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of the regional
median household income by household size.
(c)
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of the regional median
household income by household size.
(2)
The administrative agent, or an administrative agent appointed
by a particular developer, shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income household,
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:
(a)
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;
(b)
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 continuing ability to pay;
(c)
The household is currently in substandard or overcrowded living
conditions;
(d)
The household documents the existence of assets with which the
household proposes to supplement the rent payments; or
(e)
The household documents reliable anticipated third-party assistance
from an outside source such as a family member in a form acceptable
to the administrative agent and the owner of the unit.
The City of Englewood has determined that it will use the following
mechanisms to satisfy its affordable housing obligations, as follows.
A.
Rehabilitation program.
(1)
Englewood City'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.
(2)
Both owner-occupied and renter-occupied units shall be eligible
for rehabilitation funds.
(3)
All rehabilitated units shall remain affordable to very-low-,
low- and moderate-income households for a period of 10 years (the
control period). For owner-occupied units the control period will
be enforced with a lien and for renter-occupied units the control
period will be enforced with a deed restriction.
(4)
The City of Englewood shall dedicate a minimum of $10,000 for
each unit to be rehabilitated through this program, reflecting the
minimum hard cost of rehabilitation for each unit.
(5)
The City of Englewood shall designate one or more administrative
agents to administer the rehabilitation program. The administrative
agent(s) shall provide a rehabilitation manual for the owner occupancy
rehabilitation program and a rehabilitation manual for the rental
occupancy rehabilitation program to be adopted by resolution of the
Governing Body and subject to approval of the Court. 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).
(6)
Units in a rehabilitation program 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 very-low-, low- or moderate-income household at an affordable
rent and affirmatively marketed pursuant to N.J.A.C. 5:93-9[1] and UHAC.
[1]
Editor's Note: N.J.A.C. 5:93 expired October 16, 2016.
(b)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to N.J.A.C. 5:93-9 and UHAC.
(c)
Rents in rehabilitated units may increase annually based on
the standards in N.J.A.C. 5:93-9 or the standards issued by a New
Jersey administrative agency with proper authority to issue such standards.
(d)
Applicant and/or tenant households shall be certified as income-eligible
in accordance with N.J.A.C. 5:93-9 and UHAC, except that households
in owner-occupied units shall be exempt from the regional asset limit.
A.
Englewood City shall adopt by resolution an Affirmative Marketing
Plan, subject to approval of Court, compliant with N.J.A.C. 5:80-26.15
and the FHA, as may be amended and supplemented. The initial Affirmative
Marketing Plan shall include the following community and regional
organizations: Fair Share Housing Center, the New Jersey State Conference
of the NAACP, Bergen County NAACP, Jersey City NAACP, Paterson NAACP,
Passaic NAACP, Hoboken NAACP, the Latino Action Network, the Bergen
County Housing Authority, Northeast New Jersey Legal Services, Bergen
Urban League, Garden State Episcopal CDC, Mount Olive Baptist Church,
Urban League of Affordable Housing & CDC, Bergen County Housing
Coalition, Fair Housing Council of Northern NJ, New Jersey Community
Development, Advance Housing, Paterson Habitat for Humanity, Family
Promise of Bergen County, Saint Paul's Community Development
Corp., Supportive Housing Association of New Jersey, Islamic Center
of New Jersey, Monarch Housing Associates and the New Jersey Housing
Resource Center.
B.
The Affirmative Marketing Plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to affordable housing units which are being
marketed by a developer, sponsor or owner of affordable housing. The
Affirmative Marketing Plan also is intended to target those potentially
eligible persons who are least likely to apply for affordable units
in that region. It is a continuing program that directs all marketing
activities toward Housing Region 1, comprising of the counties of
Bergen, Hudson, Passaic, and Sussex, and is required to be followed
throughout the period of deed restriction.
C.
The Affirmative Marketing Plan shall provide a regional preference
for all households that live and/or work in Housing Region 1 comprised
of Bergen, Hudson, Passaic and Sussex Counties.
D.
The City shall add to the list of community and regional organizations
in its affirmative marketing plan, pursuant to N.J.A.C. 5:80-26.15(f)(5):
Fair Share Housing Center, the New Jersey State Conference of the
NAACP, the Latino Action Network, the Bergen County NAACP, Jersey
City NAACP, Paterson NAACP, Passaic NAACP, Hoboken NAACP, the Bergen
County Housing Authority, Northeast New Jersey Legal Services, Bergen
Urban League, Garden State Episcopal CDC, Bergen County Housing Coalition,
Fair Housing Council of Northern NJ, New Jersey Community Development,
Advance Housing, Paterson Habitat for Humanity, Family Promise of
Bergen County, Saint Paul's Community Development Corp., the
Supportive Housing Association of New Jersey, Islamic Center of New
Jersey, Monarch Housing Associates, and the New Jersey Housing Resource
Center, in accordance with applicable law, and shall, as part of its
regional affirmative marketing strategies during its implementation
of this plan, provide notice to those organizations of all available
affordable housing units. The administrative agent designated by the
City of Englewood, or the administrative agent appointed by a particular
developer, shall assure the affirmative marketing of all affordable
units consistent with the Affirmative Marketing Plan for the municipality.
E.
The municipality has the ultimate responsibility for adopting the
Affirmative Marketing Plan and for the proper administration of the
Affirmative Marketing Program, including initial sales and rentals
and resales and rerentals. The administrative agent designated by
the City of Englewood shall implement the Affirmative Marketing Plan
to assure the affirmative marketing of all affordable units.
F.
In implementing the Affirmative Marketing Plan, the administrative
agent shall provide a list of counseling services to very-low-, low-
and moderate-income applicants on subjects such as budgeting, credit
issues, mortgage qualification, rental lease requirements, and landlord/tenant
law.
G.
The Affirmative Marketing Plan shall describe the media to be used
in advertising and publicizing the availability of housing. In implementing
the Affirmative Marketing Plan, the administrative agent shall consider
the use of language translations where appropriate.
H.
The affirmative marketing process for available affordable units
shall begin at least four months (120 days) prior to the expected
date of occupancy.
I.
Application for affordable housing shall be available in several
locations, including, at a minimum, the county administration building
and/or the county library for each county within the housing region;
the municipal administration building and the municipal library in
the municipality in which the units are located; and the developer's
rental office. Applications shall be mailed to prospective applicants
upon request. The costs of advertising and affirmative marketing of
the affordable units shall be the responsibility of the developer,
sponsor or owner.
J.
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 Englewood City.
A.
Affordable housing set-aside. A mandatory affordable housing set-aside
requirement shall apply beginning with the effective date of this
article to any new multifamily and single-family attached residential
development, including the residential portion of a mixed-use project,
which consists of five or more new residential units which results,
in whole or in part, from: i) a municipal rezoning or zoning amendment
adopted after the effective date of this article; ii) any variance
pursuant to N.J.S.A. 40:55D-70(d), including but not limited to any
use variance or a density variance increasing the permissible density;
and iii) the adoption of a new or amended redevelopment plan or rehabilitation
plan. The set-aside shall be 20% for both sales and rental units.
For any such development for which the City's land use ordinances
(e.g., zoning or an adopted redevelopment plan) already permitted
residential development as of the effective date of this article,
this requirement shall only apply if the City permits an increase
in gross residential density.
(1)
All affordable housing controls and standards are subject to
the rules of the Council on Affordable Housing ("COAH") or any subsequent
state agency, or as approved by the Court. The development, marketing
and sale of the affordable units shall be pursuant to applicable state
regulations and the applicable provisions of this chapter, and any
subsequent amendments thereto.
(2)
This requirement shall not impose any obligation on a development,
or the nonresidential portion of a mixed-use development, that is
subject to the Statewide Non-Residential Development Fee Act, N.J.S.A.
40:55D-8.1 et seq.
(3)
All subdivision and site plan approvals of qualifying developments
shall be conditioned upon compliance with the provisions of the mandatory
affordable housing set-aside.
(4)
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.
(5)
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.
B.
This section shall not apply to any sites or specific zones otherwise
identified in the City's Settlement Agreement with FSHC dated
November 1, 2022, approved by Court Order dated January 20, 2023,
or in the City's Housing Element and Fair Share Plan, for which
density and set-aside standards shall be governed by the specific
standards set forth therein.
C.
The requirements of this section shall not apply to residential expansions,
additions, renovations, replacements, or any other type of residential
development that does not result in a net increase in the number of
dwellings of five or more.
A.
Upon the occurrence of a breach of any of the regulations governing
an 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, a requirement for household
recertification, acceleration of all sums due under a mortgage, recuperation
of any funds from a sale in 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 very-low-, 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(s) 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
adjudged 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 $1,250 per day or imprisonment for a
period not to exceed 90 days, or both, provided that each and every
day that the violation continues or exists shall be considered a separate
and specific violation of these provisions and not a continuation
of the initial offense;
(b)
In the case of an owner who has rented a very-low-, low- or
moderate-income unit in violation of the regulations governing affordable
housing units, payment into the City of Englewood Affordable Housing
Trust Fund of the gross amount of rent illegally collected;
(c)
In the case of an owner who has rented a very-low-, low- or
moderate-income unit in violation of the regulations governing affordable
housing units, payment of an innocent tenant's reasonable relocation
costs, as determined by the Court.
(2)
The municipality may file a court action in the Superior Court
seeking a judgment that would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any such 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 very-low-, low- or moderate-income
unit.
(a)
The judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the very-low-,
low- and moderate-income unit of the violating owner shall be sold
at a sale price which is not less than the amount necessary to fully
satisfy and pay off any first purchase money mortgage and prior liens
and the costs of the enforcement proceedings incurred by the municipality,
including attorney's fees. The violating owner shall have his
right to possession terminated as well as his title conveyed pursuant
to the Sheriff's sale.
(b)
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 very-low-, 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 the full 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.
(c)
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 very-low-, 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.
(d)
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 very-low-,
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 very-low-,
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.
(e)
Failure of the very-low-, low- and moderate-income unit to be
either sold at the Sheriff's sale or acquired by the municipality
shall obligate the owner to accept an offer to purchase from any qualified
purchaser which may be referred to the owner by the municipality,
with such offer to purchase being equal to the maximum resale price
of the very-low-, low- and moderate-income unit as permitted by the
regulations governing affordable housing units.
(f)
The owner shall remain fully obligated, responsible and liable
for complying with the terms and restrictions governing affordable
housing units until such time as title is conveyed from the owner.
C.
Appeals from all decisions of an administrative agent appointed pursuant
to this article shall be filed, in writing, with the Superior Court.
[Added 7-25-2023 by Ord. No. 23-20]
A.
Purpose.
(1)
In Holmdel Builder's Ass'n v. Holmdel City, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985, N.J.S.A.
52:27D-301 et seq., and the State Constitution, subject to the Council
On Affordable Housing's (COAH) adoption of rules.
(2)
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2)
and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 40:55D-8.7), COAH was 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 were under the jurisdiction of
COAH or court of competent jurisdiction and that are now before a
court of competent jurisdiction and have a Court-approved spending
plan may retain fees collected from nonresidential development.
(3)
The purpose of this section is to establish standards for the
collection, maintenance and expenditure of development fees pursuant
to COAH's rules developed in response to P.L. 2008, c. 46, Sections
8 and 32 through 38 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential
Development Fee Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7). Fees
collected pursuant to this section shall be used for the sole purpose
of providing very-low-, low- and moderate-income housing. This section
shall be interpreted within the framework of COAH's rules on
development fees, codified at N.J.A.C. 5:97-8.[1]
[1]
Editor's Note: N.J.A.C. 5:97 is reserved.
B.
Basic requirements.
(1)
The ability to impose, collect and spend development fees is
consistent with the settlement terms and conditions entered into between
the City of Englewood and FSHC and the judgement of compliance and
repose granted by the Court.
(3)
This section shall not be effective until the Court has approved,
and the City has adopted, the section.
C.
AFFORDABLE HOUSING DEVELOPMENT
COAH OR THE COUNCIL
COURT OR COURT APPROVED ENTITY
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
Definitions. The following terms, as used in this section, shall
have the following meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100% affordable development.
The New Jersey Council on Affordable Housing.
The entity that has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state pursuant to the Supreme Court decision
issued in Mount Laurel IV on March 10, 2015.
Any person, partnership, association, company or corporation
that is 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 authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27D-301
et seq., and regulated by applicable COAH Rules.
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.
D.
Residential development.
(1)
Within the City of Englewood, all residential developers, except
for developers of the types of developments specifically exempted
below and developers of developments that include affordable housing
shall pay a fee of 1.5% of the equalized assessed value for all new
residential development provided no increased density is permitted.
Development fees shall also be imposed and collected when an additional
dwelling unit is added to an existing residential structure; in such
cases, the fee shall be calculated based on the increase in the equalized
assessed value of the property due to the additional dwelling unit.
(2)
When an increase in residential density is permitted pursuant
to a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers
shall be required to pay a "bonus" development fee of 6% of the equalized
assessed value for each additional unit that may be realized, except
that this provision shall not be applicable to a development that
will include affordable housing.
(a)
However, if the zoning of a site has changed during the immediate
two years prior to the filing of the "d" variance application, then
the base density for the purposes of calculating the bonus development
fee shall be the highest density permitted by right during the two-year
time 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 will equal 1.5% of
the equalized assessed value on the first two units, and 6% of the
equalized assessed value for the two additional units, provided that
zoning on the site has not changed during the two-year period preceding
the filing of such a variance application.
(b)
In any case, these fees shall not apply to developments exempt from the collection of development fees in accordance with the provisions specified in § 250-126D(3) of this section, hereinbelow.
(3)
Eligible Exactions, Ineligible Exactions and Exemptions for
Residential Development.
(a)
All affordable housing developments and/or developments that
produce affordable units shall be exempt from the payment of development
fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption of this section, and any preceding
section permitting the collection of development fees, shall be exempt
from the payment of development fees, unless the developer seeks a
substantial change in the original approval. Where site plan approval
is not applicable, the issuance of a zoning permit and/or construction
permit shall be synonymous with preliminary or final site plan approval
for the purpose of determining the right to an exemption. In all cases,
the applicable fee percentage shall be determined based upon the Development
Fee Ordinance in effect on the date that the construction permit is
issued.[3]
(c)
Any repair, reconstruction, or improvement of a structure, the
cost of which is less than 50% of the market value of the structure
before the improvement or repair is started, shall be exempt from
the payment of development fees. For purposes of this section, "market
value" shall mean the equalized assessed value of the existing improvement
as established by the City Tax Assessor. The cost of the repair, reconstruction,
or improvements shall be determined by an itemized construction cost
estimate prepared and submitted to the Construction Official. The
estimate shall be signed and sealed by an architect or professional
engineer licensed by the State of New Jersey, or where no such professionals
are retained, signed by the contractor or the homeowner. Where prepared
by the homeowner or contractor, the City Engineer may review such
estimates for accuracy. "Substantial improvement" is considered to
commence when the first alteration of any wall, floor, or other structural
part of the building commences, whether or not the alternation affects
the external dimensions of the structure. The term does not, however,
include either:
[1]
Any project for improvement of a structure to comply with existing
state or local building, fire, health, sanitary or safety code specifications
which are solely necessary to assure safe living conditions; or
[2]
Any alteration of a structure listed on the National Register
of Historic Places or a state inventory of historic places, but a
development fee shall be charged for any new dwelling constructed
as a replacement for a previously existing dwelling on the same lot
that was or will be demolished, unless the owner resided in the previous
dwelling for a period of one year or more prior to obtaining a demolition
permit. Where a development fee is charged for a replacement dwelling,
the development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
(d)
Structural alterations that do not increase gross floor area
of a building or structure or increase the equalized assessed value
of a property shall be exempted from paying a development fee.
(e)
Nonprofit organizations constructing residential projects which
have received tax-exempt status pursuant to Section 501(c)(3) of the
Internal Revenue Code, providing current evidence of that status is
submitted to the Municipal Clerk, together with a certification that
services of the organization are provided at reduced rates to those
who establish an inability to pay existing charges, shall be exempted
from paying a development fee.
(f)
Federal, state, county, and local governments shall be exempted
from paying a development fee.
(g)
Homes replaced as a result of a natural disaster such as a fire
or a flood shall be exempt from the payment of a development fee.
(This exemption applies only for the owner of record at the time of
the fire, flood, or natural disaster.)
(h)
In addition to the construction of new principal and/or accessory
buildings, development fees shall be imposed and collected for the
construction of additions or expansions to existing buildings, for
the change or conversion of an existing building to accommodate a
more intense use, and/or for the demolition and replacement of an
existing building, provided that:
E.
Nonresidential development.
(1)
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specially exempted below,
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)
Within all zoning districts, nonresidential developers, except
for developers of the types of development specifically exempted below,
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 also 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 pre-existing land and improvements and the equalized
assessed value of the newly improved structure, i.e., land and improvements,
and such calculation shall be made 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.
(4)
Eligible Exactions, Ineligible Exactions and Exemptions for
Nonresidential Development.
(a)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the 2.5% development fee, unless
otherwise exempted below.
(b)
The 2.5% fee shall not apply to an increase in equalized assessed
value resulting from alterations, change in use within existing building
footprint, reconstruction, renovations, and repairs.
(c)
Nonresidential projects that have received a certificate of
occupancy or general development plan approval or have entered into
a developer's agreement or a redevelopment agreement, all prior
to July 17, 2008 (the effective date of P.L. 2008, c. 46), shall be
exempt from the payment of nonresidential development fees, provided
that an affordable housing fee of at least 1% of the equalized assessed
value of the improvements is included in the development plan, developer's
agreement or redevelopment agreement.
(d)
Nonresidential developments shall be exempt from the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to the Statewide Nonresidential Development Fee
Act (N.J.S.A. 40:55D-81 through 40:55D-8.7), 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.
(e)
All nonresidential construction of buildings or structures on
property used by houses of worship, and property used for educational
purposes which is tax-exempt pursuant to N.J.S.A. 54:4-3.6, provided
that the property continues to maintain its tax-exempt status under
that statute for a period of at least three years from the date of
the certificate of occupancy.
(f)
In addition, the following shall be exempt from the imposition
of a nonresidential fee:
[1]
Parking lots and parking structures, regardless of whether the
parking lot or parking structure is constructed in conjunction with
a nonresidential development or as a stand-alone nonresidential development;
[2]
Any nonresidential development which is an amenity to be made
available to the public, including, but not limited to, recreational
facilities, community centers and senior centers as defined in Section
35 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.4), which are developed
in conjunction with or funded by a nonresidential developer;
[3]
Nonresidential construction resulting from a relocation of or
an on-site improvement to a nonprofit hospital or a nursing home facility;
[4]
Projects that are located within a specifically delineated urban
transit hub, as defined pursuant to Section 2 of P.L. 2007, c. 346
(N.J.S.A. 34:1 B-208);
[5]
Projects that are located within an eligible municipality, as
defined under Section 2 of P.L. 2007, c. 346 (N.J.S.A. 34:1B-208),
when a majority of the project is located within a 1/2 mile radius
of the midpoint of a platform area for a light rail system;
[6]
Projects determined by the New Jersey Transit Corporation to
be consistent with a transit village plan developed by a transit village
designated by the New Jersey State Department of Transportation; and
[7]
Commercial farms and Use Group "U" buildings and structures.
(g)
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to the Statewide nonresidential
Development Fee Act shall be subject to the fee at such time as the
basis for the exemption set forth in this subsection 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.
(h)
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the City of Englewood as a lien against the
real property of the owner.
(i)
Federal, state, county, and local governments of nonresidential
development shall be exempted from paying a development fee.
F.
Collection of fees.
(1)
Englewood City shall collect development fees for affordable
housing in accordance with the following:
(a)
The Planning Board Secretary of Englewood City shall notify
the Englewood City Construction Code Official whenever either a preliminary,
final or other applicable approval is granted to any development which
is subject to the collection of a development fee.
(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," which is to be completed by
the developer as per the instructions provided.
(c)
City Construction Official responsible for the issuance of a
building permit shall notify the City 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 City Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development. The equalized assessed value and
the required development fee shall be estimated by the City Tax Assessor
prior to the issuance of the construction permit, with the understanding
that the estimate of the equalized assessed value is not intended
to establish the equalized assessed value for tax purposes.
(2)
Except as provided in Subsection E(3) above, 50% of the initially calculated development fee shall be collected at the time of issuance of the construction permit. The remaining portion shall be collected at the time of issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the time of issuance of the construction permit and that determined at the time of issuance of the certificate of occupancy.
(3)
The City Construction Official responsible for the issuance
of a final certificate of occupancy shall notify the City Tax Assessor
of any and all requests for the scheduling of a final inspection on
property which is subject to a development fee.
(4)
Within 10 business days of a request for the scheduling of a
final inspection, the City Tax Assessor shall confirm or modify the
previously estimated equalized assessed value of the improvements
of the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
(5)
Should the City 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).
(6)
Upon tender of the remaining development fee, provided the developer
is in full compliance with all other applicable laws, the City shall
issue a final certificate of occupancy for the subject property.
(a)
Regardless of the time of collection of the development fee,
the fee shall be based upon the percentage that applies on the date
that the construction permit is issued.
(b)
The Construction Code Official shall forward all collected development
fees to Englewood City's Chief Financial Officer who shall deposit
such fees into the established Housing Trust Fund.
(7)
Appeal of development fees.
(a)
A developer may challenge residential development fees imposed
by filing a challenge with the County Board of Taxation. Pending a
review and determination by the Board, collected fees shall be placed
in an interest-bearing escrow account by the City of Englewood. Appeals
from a determination of the Board may be made to the tax court in
accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
(b)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by the City of Englewood.
Appeals from a determination of the Director may be made to the tax
court in accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
G.
Affordable housing trust fund.
(1)
A Development Fee Ordinance creating a dedicated revenue source
for affordable housing was adopted by the City on April 11, 2007,
by way of Ordinance No. 07-03.[5] Said Development Fee Ordinance established the City's
Affordable Housing Trust Fund that will be continued to be maintained
by the Chief Financial Officer of the City of Englewood for the purpose
of depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
These funds shall be spent in accordance with N.J.A.C. 5:93-8.16[6] as described in the sections that follow.
(2)
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(a)
Payments in lieu of on-site construction of a fraction of an
affordable unit, where permitted by ordinance or by agreement with
the City of Englewood;
(b)
Developer contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached dwelling unit development
accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Affordable housing enforcement fines and application fees;
(g)
Proceeds from the sale of affordable units; and
(h)
Any other funds collected in connection with the City of Englewood's
affordable housing program.
(i)
The City of Englewood shall provide the Court with written authorization,
in the form of a three-party escrow agreement between the municipality,
the bank with which the affordable housing fees are deposited by the
City and maintained by said bank, and a Court-approved entity to permit
the Court to direct the disbursement of the funds as provided for
in N.J.A.C. 5:93-8.19 and 5:93-8.20.[7]
[7]
Editor's Note: N.J.A.C. 5:93 expired October 16, 2016.
(j)
All interest accrued in the Affordable Housing Trust Fund shall
only be used to fund eligible affordable housing activities approved
by the Court or a successor agency to COAH.
(k)
In the event of a failure by the City of Englewood to comply
with trust fund monitoring and reporting requirements or to submit
accurate monitoring reports; or a failure to comply with the conditions
of the judgment of compliance or a revocation of the judgment of compliance;
or a failure to implement the approved Spending Plan and to expend
funds within the applicable required time period as set forth in In
re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff d 442 N.J.
Super. 563); or for other good cause demonstrating the unapproved
use(s) of funds, the Court may authorize the State of New Jersey,
Department of Community Affairs, Division of Local Government Services
(LGS), to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the City of Englewood, or, if not practicable, then within
the County or the Housing Region.
(l)
Any party may bring a motion before the Superior Court presenting
evidence of such condition(s), and the Court may, after considering
the evidence and providing the municipality a reasonable opportunity
to respond and/or to remedy the noncompliant condition(s), and upon
a finding of continuing and deliberate noncompliance, determine to
authorize LGS to direct the expenditure of funds in the Affordable
Housing Trust Fund or impose such other remedies as may be reasonable
and appropriate to the circumstances.
H.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan
approved by the Court. Funds deposited in the Affordable Housing Trust
Fund may be used for any activity approved by the Court to address
the City of Englewood's fair share obligation and may be set
up as a grant or revolving loan program. Such activities include,
but are not limited to: preservation or purchase of housing for the
purpose of maintaining or implementing affordability controls, rehabilitation,
new construction of affordable housing units and related costs, accessory
apartment, market to affordable, conversion of existing nonresidential
buildings to create new affordable units, green building strategies
designed to be cost saving, and in accordance with accepted national
or state standards, purchase of land for affordable housing, improvement
of land to be used for affordable housing, extensions or improvements
of roads and infrastructure to affordable housing sites, financial
assistance designed to increase affordability, administration necessary
for implementation of the Housing Element and Fair Share Plan, and/or
any other activity as permitted by the Court and specified in the
approved spending plan.
(2)
Funds shall not be expended to reimburse the City of Englewood
for past housing activities.
(3)
Payments in lieu of constructing affordable housing units when
the affordable housing calculation results in fractional units on
residential and mixed-use sites shall only be used to fund eligible
affordable housing activities within the City.
(4)
At least 30% of all development fees collected and interest
earned shall be used to provide affordability assistance to very-low-,
low- and moderate-income households in affordable units included in
the Housing Element and Fair Share Plan, provided and in accordance
with the following:
(a)
One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
very-low-income households earning 30% or less of the regional median
income by household size for Housing Region 1, in which the City of
Englewood is located.
(b)
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. The specific programs
to be used for affordability assistance shall be identified and described
within the Spending Plan.
(c)
Affordability assistance for very-low-income households earning
30% or less of the regional median income by household size may include
buying down the cost of low- or moderate-income units in the City's
Fair Share Plan to make them affordable to very-low-income households
(earning 30% or less of median income). The specific programs to be
used for very-low-income affordability assistance shall be identified
and described within the Spending Plan.
(d)
Payments in lieu of constructing affordable units on-site, if
permitted by ordinance or by agreement with the City of Englewood,
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
(6)
No more than 20% of all revenues collected from the development
fees may be expended on administration, including, but not limited
to, the salaries and benefits for Englewood City employees or consultant
fees necessary to develop or implement a new affordable housing program,
a Housing Element and Fair Share Plan, and/or an affirmative marketing
program or a rehabilitation program.
(a)
In the case of a rehabilitation program, the administrative
costs of the rehabilitation program shall be included as part of the
20% of collected development fees that may be expended on administration.
(b)
Administrative funds may be used for income qualification of
households, monitoring the turnover of sale and rental units, and
compliance with the Court's monitoring requirements.
(c)
Legal or other fees related to litigation opposing affordable
housing sites or related to securing or appealing a judgment from
the Court are not eligible uses of the Housing Trust Fund.
(7)
Court approval of Englewood's spending plan constitutes
a "commitment" on the part of the City of Englewood for expenditure
of funds pursuant to N.J.S.A. 52:27D-329.2 and 52:27D-329.3 with the
four-year time period for expenditure designated pursuant to those
provisions to commence with the entry of a final Judgment of Repose
in accordance with the provisions of In re Tp. of Monroe, 442 N.J.
Super. 565 (Law Div. 2015) (Aff'd 442 N.J. Super. 563.).
I.
Monitoring. Beginning on May 31, 2024, the City of Englewood shall
provide annual reporting of Affordable Housing Trust Fund activity
to the State of 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 Affordable Housing
Trust Fund activity, including the sources and amounts of funds collected
and the amounts and purposes for which any funds have been expended.
Such reporting shall include an accounting of development fees collected
from residential and nonresidential developers, payments in lieu of
constructing affordable units on site (if permitted by ordinance or
by agreement with the City), funds from the sale of units with extinguished
controls, barrier free escrow funds, rental income from City-owned
affordable housing units, repayments from affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the Spending Plan approved by the Court.
J.
Ongoing collection of development fees and expiration of section.
(1)
The ability for the City of Englewood to impose, collect and
expend development fees shall expire with the expiration of the repose
period covered by its judgment of compliance and repose unless Englewood
City has first filed an adopted Housing Element and Fair Share Plan
with the Court or with a designated State administrative agency, has
petitioned for a judgment of compliance from the Court or for substantive
certification or its equivalent from a state administrative agency
authorized to approve and administer municipal affordable housing
compliance, and has received approval of its Development Fee Ordinance[9] from the entity that will be reviewing and approving the
Housing Element and Fair Share Plan.
(2)
If the City of Englewood fails to renew its ability to impose
and collect development fees prior to the date of expiration of judgment
of compliance, it may be subject to forfeiture of any or all funds
remaining within its municipal affordable housing trust fund.
(a)
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).
(b)
The City of Englewood shall not impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its judgment of compliance, nor shall
the City of Englewood retroactively impose a development fee on such
a development.
(c)
The City of Englewood shall not expend any of its collected
development fees after the expiration of its substantive certification
or judgment of compliance.
