A.
Title. This chapter shall be entitled "An Ordinance Establishing
Administrative Procedures and Regulations for the Implementation of
Low- and Moderate-Income Housing Plans in the Borough of Berlin, in
the County of Camden and State of New Jersey."
B.
Short title. This chapter may be known as "Affordable Housing."
C.
Purpose. The purpose of this chapter is to implement the Uniform
Housing Affordability Controls (N.J.A.C. 5:80-26.1 et seq.) and the
regulations of the New Jersey Council on Affordable Housing or Department
of Community Affairs, as the case may be, as they may be amended or
superseded. The ordinance is designed to implement the New Jersey
Fair Housing Act (N.J.S.A. 52:27D-301 et seq.) by assuring that affordable
housing created under the Act is occupied by low- and moderate-income
households for the appropriate period of time. The words, phrases,
and terms herein shall be interpreted to have the same meanings and
usages as in the Fair Housing Act (N.J.S.A. 52:27D-301 et seq.), the
Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.), the substantive
rules of the Council on Affordable Housing (N.J.A.C. 5:97-1 et seq.)
and the Uniform Housing Affordability Rules. It is the further purpose
of this article to regulate the development and management of low-
and moderate-income housing dwellings constructed in compliance with
the Housing Element and Fair Share Plan of the Master Plan of the
Borough of Berlin as they may be adopted or superseded.
D.
Applicability. No dwelling or dwellings designated for low- and moderate-income
housing shall be occupied by any persons except in strict conformance
with the income limitations and other provisions governing affordable
housing as contained herein. Notwithstanding this limitation, projects
utilizing federal low-income housing tax credits under Section 42
of the Internal Revenue Code, dwellings that receive balanced housing
funds under the New Jersey Housing and Mortgage Finance Agency's
Home Express Program or dwellings receiving assistance under the Federal
HOME Program, 24 CFR 92.252(e), 92.254(a)(4); HUD 202 Program, 24
CFR Part 891; HUD 811 Program, 24 CFR Part 890;[1] HUD HOPE VI Program; or Federal Home Loan Bank, Affordable
Housing Program, 12 CFR Part 60,[2] shall adhere to the regulations of their respective programs
as they may be revised or superseded.
The following terms shall have the meanings indicated unless
a different meaning clearly is intended from the context:
Construction in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity responsible for administering the affordability
controls of this chapter pursuant to N.J.A.C. 5:80-26.14, N.J.A.C.
5:96 and N.J.A.C. 5:97.
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 low-
and moderate-income households.
A sales price or rent within the means of a low- or moderate-income
household as defined in N.J.A.C. 5:97-9; 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 dwelling proposed or created pursuant to the Fair Housing
Act, credited pursuant to N.J.A.C. 5:97-4, and/or funded through an
Affordable Housing Trust Fund.
A development included in the Housing Element and Fair Share
Plan, or as otherwise identified by the Borough of Berlin or the New
Jersey Pinelands Commission, and includes, but is not limited to,
an inclusionary development, a municipal construction project or a
one-hundred-percent affordable development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development where the unit is situated
are 62 years or older; or
At least 80% of the units are occupied by one person that is
55 years or older; or
The development has been designated by the Secretary of the
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.
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 low-income household or a moderate-income household.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act (N.J.S.A. 52:27D-301 et seq.) which has
primary jurisdiction for the administration of housing obligations
in accordance with sound regional planning consideration in the state.
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 of any
land proposed to be included in a development, including the holder
of an option or contract to 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 set forth in this chapter and as permitted under N.J.A.C. 5:97-8.3.
A room or series of connected rooms designed for permanent
human habitation containing living, cooking, sleeping and sanitary
facilities for one household.
The assessed value of a property divided by the current average
ratio of assessed value to true value for the municipality in which
the property is situated (the "equalization ratio") 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). Equalized assessed value may be estimated
at the time of building permit by the Tax Assessor utilizing estimates
for construction costs. Final "equalized assessed value" will be determined
at project completion by the Municipal Tax Assessor.
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.)
See "household."
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.
The combined income, as defined herein, of all members of
a household or family.
All persons living as a single, nonprofit housekeeping dwelling,
whether or not the same are related by blood, marriage or otherwise.
A development containing both affordable dwellings and market
rate dwellings. 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 reconstruction of a vacant residential structure.
Income from all sources, including but not limited to wages,
salaries, tips, commissions, alimony, regularly scheduled overtime,
pensions, social security, unemployment compensation, Temporary Assistance
for Needy Families (TANF), verified regular child support, disability,
net income from business or real estate, and income from assets such
as savings, certificates of deposit, money market accounts, mutual
funds, stocks, bonds and imputed income from non-income-producing
assets, such as equity in real estate.
A judgment issued by the Superior Court approving a municipality's
plan to satisfy its fair share housing obligation for very-low-, low-
and moderate-income housing.
A household with a total gross annual household income that
is equal to or less than 50% of the median gross household income
for households of the same size within 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.
A unit not restricted to low- and moderate-income households
that may sell or rent at any price.
The median gross household income by household size for the
applicable housing region, as adopted annually by COAH.
A household with a total gross annual household income of
more than 50% but less than 80% of the median gross household income
for households of the same size within the applicable housing.
A restricted unit that is affordable to a moderate-income
household.
A municipal employee responsible for coordinating the municipality's
response to meeting its affordable housing obligation and who may
or may not be the designated 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.
The entity or family holding title to a dwelling unit.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by COAH's adopted regional income limits published
annually by COAH.
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.
A living room, dining room, recreation room, kitchen or bedroom.
Closets, bathrooms, cellars and attics shall be excluded, except where
portions of cellars and attics have been improved to meet housing
and building code requirements for rooms.
Any increase in an approved structure's bulk or floor
area where the result exceeds any of the requirements of the zoning
district in which it is located and where any changes exceed the limitations
necessary to qualify as an insubstantial change. An "insubstantial
change" means a revision to a preliminary or final plat which does
not violate any requirements of the Borough's ordinances, does
not alter the amount of lower-income housing or other forms of participating
in the lower-income housing program as set forth in the approved development
and does not have changes which exceed any of the following: setback
in any yard of five feet; seven feet in building height; 1% in the
approved floor area ratio; 1% in the approved lot coverage (building,
paving and other coverages); five feet in building spacing; three
parking spaces; one loading space; five feet in driveway locations;
and 1% of the area of the approved site disturbance. A substitution
of similar landscaping material, lighting fixture and signage is not
a substantial change, provided that there is no change in approved
quantities and/or dimensions.
A determination by COAH approving a municipality's housing
element and fair share plan in accordance with the provisions of the
Fair Housing Act, N.J.S.A. 52:27D-301 et seq., and the rules and criteria
as set forth by COAH. A grant of substantive certification shall be
valid for a period of six years in accordance with the terms and conditions
contained in the substantive certification, or as otherwise determined
by a court of competent jurisdiction.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
See "dwelling."
A household with a total gross annual household income equal
to 30% or less of the median gross household income for households
of the same size within the applicable housing.
A restricted unit that is affordable to a very-low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for rehabilitation.
A.
The Borough Council shall appoint a Municipal Housing Liaison and
administrative agent or agents of the Borough. The Borough Council
may also approve project-specific administrative agents proposed by
the developers of low- and moderate-income housing in its initial
sales and rental of new dwellings. The Municipal Housing Liaison shall
be located within the Office of the Borough Administrator. The Municipal
Housing Liaison shall be a municipal employee. Furthermore, the Municipal
Housing Liaison shall meet any criteria and training requirements
established by COAH and shall be approved by COAH or the Court, as
appropriate. The Municipal Housing Liaison may also be the administrative
agent, provided that such person is qualified to hold the position
pursuant to the requirements of N.J.A.C. 5:80-26.14(e). Nothing within
this chapter shall be construed to affect the appointment or term
of any prior established Municipal Housing Liaison or administrative
agent position.
B.
The Municipal Housing Liaison shall have the following duties:
(1)
Coordinate the activities of the administrative agent, Borough Solicitor,
Borough Planner, Borough Engineer, service contractors and others
to ensure compliance with the affordable housing obligation of the
Borough of Berlin.
(2)
Act as the main point of contact between the Borough of Berlin and
the New Jersey Council on Affordable Housing (COAH) or its successor,
affordable housing providers, the administrative agent(s) and interested
households.
(3)
Provide educational materials for the public; receive requests from
the public concerning the affordable housing program, and direct inquiries
to the appropriate official or service provider.
(4)
The Municipal Housing Liaison shall complete and return to COAH all
monitoring forms included in monitoring requirements related to units
in affordable housing projects and the collection of development fees
from residential and nonresidential developers, payments in lieu of
constructing affordable units on site, funds from the sale of units
with extinguished controls, barrier-free escrow funds, rental income,
repayments from affordable housing program loans, and any other funds
collected in connection with the Borough of Berlin's housing
program, as well as to the expenditure of revenues and implementation
of the plan certified by COAH. All monitoring reports shall be completed
on forms designed by COAH. In this activity, the Municipal Housing
Liaison shall have the assistance of the administrative agent.
(5)
The Municipal Housing Liaison shall keep records of the affirmative
marketing activities undertaken in accordance with the affirmative
marketing plan established by the administrative agent and the developer's
administrative agent and file monitoring reports as required by COAH
or successor agency, including:
(a)
Electronic reporting of affordable housing activity; any required
paper forms.
(b)
Copies of any press releases, brochures, flyers, print advertisements
and application forms used in the affirmative marketing program.
(c)
The income and demographic characteristics of each household
applying for and occupying income-restricted housing.
(d)
An evaluation of any necessary adjustments required to the affirmative
marketing program as communicated by the administrative agent.
(6)
Institute and maintain an effective means of communicating information
between owners and the administrative agent regarding the availability
of restricted dwellings for resale or rental.
(7)
Coordinate meetings with affordable housing providers and administrative
agents, as applicable.
(8)
Attend continuing educational opportunities on affordability controls,
compliance monitoring and affirmative marketing as offered or approved
by COAH or its successor agency.
(9)
Other duties as directed by the Borough Administrator and/or as required
by COAH for Municipal Housing Liaisons.
C.
The Borough Council shall designate by resolution, or contract with
same, one or more administrative agents to administer newly constructed
affordable units in accordance with N.J.A.C. 5:96-1 et seq., 5:97-1
et seq., and 5:80-26.1 et seq., subject to the approval of COAH to
the degree the agency requires such approval. Each administrative
agent shall have the following duties:
(1)
Ensure as his or her primary responsibility that the restricted dwellings
under administration are sold or rented, as applicable, only to very-low,
low- and moderate-income households in accordance with the affordability
controls as required in N.J.A.C. 5:80-26.1 et seq.;
(2)
Conduct an outreach process to ensure affirmative marketing of affordable
housing dwellings in accordance with the provisions of N.J.A.C. 5:80-26.15;
(3)
Solicit, schedule, conduct and follow up on interviews with interested
households;
(4)
Conduct interviews and obtain sufficient documentation of gross income
and assets upon which to base a determination of income eligibility
for a low- or moderate-income dwelling;
(5)
Provide written notification to each applicant as to the determination
of eligibility or noneligibility;
(6)
Create and maintain a referral list of eligible applicant households
living in the housing region and eligible applicant households with
members working in the housing region where the dwellings are located;
(7)
Except as otherwise permitted by law, employ a random selection process
when referring households for certification to occupy affordable dwellings;
(8)
Furnish to attorneys or closing agents forms of deed restrictions
and mortgages for recording at the time of conveyance of title of
each restricted dwelling;
(9)
Create and maintain a file on each restricted dwelling for its control
period, including the recorded deed with restrictions, recorded mortgage
and note, as appropriate;
(10)
Institute and maintain an effective means of communicating information
to the Municipal Housing Liaison and low- and moderate-income households
regarding the availability of restricted dwellings for resale or rerental;
(11)
Review and approve requests from owners of restricted dwellings
who wish to take out home equity loans or refinance during the term
of their ownership;
(12)
Review and approve requests to increase sales prices from owners
of restricted dwellings who wish to make capital improvements to the
dwellings that would affect the selling price (such authorizations
to be limited to those improvements resulting in additional bedrooms
or bathrooms and the cost of central air-conditioning systems);
(13)
Provide or direct qualified low- and moderate-income applicants
to counseling services on subjects such as budgeting, credit issues,
mortgage qualifications, lease requirements and landlord/tenant law,
and develop and maintain and update a list of entities and lenders
willing and able to perform such services.
(14)
Process requests and make determinations on requests by owners
of restricted dwellings for hardship waivers;
(15)
Communicate with lenders regarding foreclosures;
(16)
Ensure the issuance of continuing certificates of occupancy
or certifications pursuant to N.J.A.C. 5:80-26.10 for affordable housing
units in the program;
(17)
Notify the Municipal Housing Liaison of an owner's intent
to sell a restricted dwelling;
(18)
Ensure that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Camden
County Register of Deeds after the termination of the affordability
controls for each restricted dwelling;
(19)
Assist the Municipal Housing Liaison in completing monitoring
reports to be submitted to COAH as required; and
(20)
Such other responsibilities as may be necessary to carry out
the provisions of this chapter as directed by the Borough Administrator.
D.
The administrative agent shall create an operating manual for each
affordable housing program operated by the municipality that implements
the requirements of the uniform housing affordability controls rules
and regulations (N.J.A.C. 5:80-26.1 et seq.) subject to the approval
of COAH to the degree the agency requires such approval. Such program
manual shall be reviewed and adopted by the governing body and shall
be a public record and available for review in the office of the Borough
Clerk and in the office(s) of the administrative agent(s).
E.
Affirmative marketing plan. All affordable housing units in the Borough of Berlin shall be marketed in accordance with the provisions herein unless otherwise provided in COAH's rules at N.J.A.C. 5:97-1 et seq. This affirmative marketing plan shall apply to all developments that contain or will contain low- and moderate-income units, including those that are part of the Borough's prior round Fair Share Plan and its current Fair Share Plan and those that may be constructed in future developments not yet anticipated by the Fair Share Plan. This affirmative marketing plan shall also apply to any rehabilitated units that are vacated and rerented during the applicable period of controls for rehabilitated rental units. The administrative agent shall prepare an affirmative marketing plan for each affordable housing program, as applicable, comporting with N.J.A.C. 5:80-26.15, for review and approval by the Borough Administrator for conformance with this chapter. Alternatively, the administrative agent of the Borough may oversee the work of a developer's administrative agent, provided that the latter agent has been approved by the Borough of Berlin and COAH, should COAH require such approval, in accordance with the procedures in Subsection F hereinbelow.
(1)
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 housing units which are being marketed
by a developer or sponsor of affordable housing. The affirmative marketing
plan is also intended to target those potentially eligible persons
who are least likely to apply for affordable units in that region.
It is a continuing program that directs all marketing activities toward
the COAH housing region in which the municipality is located and covers
the entire period of the deed restriction for each restricted housing
unit. The Borough of Berlin is located in COAH Housing Region 5, consisting
of Burlington, Gloucester and Camden Counties.
(2)
Although the Borough has the ultimate responsibility for implementing
all aspects of Berlin's affordable housing program, the administrative
agent designated by the Borough shall assure the affirmative marketing
of all affordable units is consistent with the affirmative marketing
plan for the municipality.
(3)
The affirmative marketing process for available affordable units
shall begin at least four months prior to the expected date of occupancy.
(4)
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner,
unless otherwise determined or agreed to by the Borough of Berlin.
(5)
The affirmative marketing plan for each affordable housing development
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.
(6)
Applications for affordable housing shall be available in several
locations in accordance with the affirmative marketing plan, 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.
(7)
The affirmative marketing plan for each affordable housing development
shall meet the following minimum requirements:
(b)
The primary marketing shall take the form of at least one press
release and a paid display advertisement in each of the above newspapers
once a week for four consecutive weeks. Additional advertising and
publicity shall be on an "as needed" basis. The developer/owner shall
disseminate all public service announcements and pay for display advertisements.
The developer/owner shall provide proof of publication to the administrative
agent. All press releases and advertisements shall be approved in
advance by the administrative agent.
(c)
The advertisement shall include a description of the:
[1]
Location of the units;
[2]
Directions to the units;
[3]
Range of prices for the units;
[4]
Size, as measured in bedrooms, of the units;
[5]
Maximum income permitted to qualify for the units;
[6]
Location of applications;
[7]
Business hours when interested households may obtain an application;
and
[8]
Application fees.
(d)
Newspaper articles, announcements and information on where to
request applications for low- and moderate-income housing shall appear
at least once a week for four consecutive weeks in at least three
locally oriented weekly newspapers within the region, one of which
shall be circulated primarily in Camden County and the other two of
which shall be circulated primarily outside of Camden County but within
the housing region.
(e)
Regional cable television stations or regional radio stations
shall be used during the first month of advertising. The developer
must provide satisfactory proof of public dissemination consistent
with the television stations and regional radio stations identified
in Section 3c of COAH's Affirmative Fair Housing Marketing Plan
for Affordable Housing in Region 5 (attached to and hereby made part
of this resolution).[1]
[1]
Editor's Note: Said item is on file in the Borough offices.
(8)
Applications, brochure(s), sign(s) and/or poster(s) used as part
of the affirmative marketing program shall be available/posted in
one or more the following locations:
(a)
Berlin Borough Municipal Building (Clerk's office).
(b)
Berlin Borough Public Library.
(c)
Developer's sales or rental office(s).
(d)
Burlington County Library Headquarters.
(e)
Burlington County Office Building.
(f)
Camden Court House.
(g)
Gloucester County Court House.
(h)
Applications shall be mailed by the administrative agent and
Municipal Housing Liaison to prospective applicants upon request.
Also, applications shall be available at the developer's sales/rental
office and shall be mailed to prospective applicants upon request.
(9)
The administrative agent shall develop, maintain and update a list of community contact person(s) and/or organizations(s) in Burlington, Gloucester and Camden Counties that will aid in the affirmative marketing program with particular emphasis on contacts that will reach out to groups that are least likely to apply for housing within the region, including major regional employers per Subsection E(12) below.
(11)
Quarterly informational circulars and applications shall be
sent to the administrators of each of the following agencies within
the counties of Burlington, Gloucester, and Camden:
(12)
Quarterly informational circulars and applications shall be
sent to the chief personnel administrators of all of the major employers
within the region, as listed on Attachment A, Part III, Marketing,
Section 3d, of COAH's Affirmative Fair Housing Marketing Plan
for Affordable Housing in Region 5.
(13)
The following is a listing of community contact person(s) and/or
organizations in Burlington, Gloucester and Camden Counties that will
aid in the affirmative marketing program and provide guidance and
counseling services to prospective occupants of low- and moderate-income
units:
(14)
The implementation of the affirmative marketing plan for a development
that includes affordable housing shall commence at least 120 days
before the issuance of either a temporary or permanent certificate
of occupancy. The implementation of the affirmative marketing plan
shall continue until all low-income housing units are initially occupied
and for as long as affordable units exist that remain deed restricted
and for which the occupancy or reoccupancy of units continues to be
necessary.
F.
The administrative agent of the Borough shall monitor the designated
administrative agent of the developer in the initial sales and rental
transactions for low- and moderate-income dwellings in accordance
with N.J.A.C. 5:80-26.14, as it may be amended or superseded. The
developer shall assume all costs for the affirmative marketing and
initial sales and rental transactions associated with the low- and
moderate-income housing development, including the cost of review
and oversight by the Borough's administrative agent. The developer's
administrative agent shall have all of responsibilities as put forth
in this rule and shall follow the same procedures for affirmative
marketing, qualifying individuals and households and the recording
of property instruments as described herein for the Borough's
administrative agent. The Borough's administrative agent shall
charge a reasonable fee to developers, owners or sellers to cover
the costs of his or her oversight and administration of the affordability
controls program. Copies of all instruments to be recorded shall be
provided to the Borough's administrative agent for review and
approval prior to recording and shall be provided to both the Borough's
administrative agent and Municipal Housing Liaison after recording.
G.
In order to ensure an orderly transfer of control responsibility
from a municipality to an administrative agent, from one administrative
agent to another administrative agent, or other transfer, the requirements
as set forth in N.J.A.C. 5:80-26.17 shall apply as are necessary before
or during the transition. The administrative agent's enforcement
responsibility for implementing such practices and procedures shall
not be delegated or otherwise transferred to any other party, except
to a successor administrative agent.
H.
The Borough of Berlin shall be deemed to have delegated to the administrative
agent the day-to-day responsibility for implementing practices and
procedures designated to ensure effective compliance with the controls
set forth in this chapter. The Borough of Berlin, however, shall retain
the ultimate responsibility for ensuring effective compliance with
the requirements as set forth in N.J.A.C. 5:80-26.1 et seq.
A.
The administrative agent shall secure all information from applicant
households necessary and appropriate to determine that restricted
units are occupied by properly sized households with appropriate low-
or moderate-income levels. No household may be referred to a restricted
unit, or may receive a commitment with respect to a restricted unit,
unless that household has received a signed and dated certification,
as set forth in this section, and has executed the certificate in
the form provided.
B.
The administrative agent shall use a random selection process to
select occupants of low- and moderate-income housing.
C.
The administrative agent shall prepare a standard form of certification
and shall sign and date one for each household when certified. This
certification shall be known as a "certificate of eligibility" and
shall be a prerequisite for the purchase or rental of an income-restricted
dwelling. An initial certification shall be valid for no more than
180 days unless a valid contract for sale or lease has been executed
within that time period. In this event, certifications shall be valid
until such time as the contract for sale or lease is ruled invalid
and no occupancy has occurred. Certifications may be renewed in writing
at the request of a certified household for an additional period of
180 days at the discretion of the administrative agent.
D.
When reviewing an applicant household's income to determine
eligibility, the administrative agent shall compare the applicant
household's total gross annual income to the regional very-low-,
low- and moderate-income limits then in effect, as adopted by COAH
or successor agency. For the purposes of this subchapter, income includes,
but is not limited to, wages, salaries, tips, commissions, alimony,
regularly scheduled overtime, pensions, social security, unemployment
compensation, TANF, verified regular child support, disability, net
income from business or real estate, and income from assets such as
savings, certificates of deposit, money market accounts, mutual funds,
stocks, bonds and imputed income from non-income-producing assets,
such as equity in real estate.
E.
Except as otherwise specifically stated in this subchapter, the sources
of income considered by the administrative agent shall be the types
of regular income reported to the Internal Revenue Service and which
is eligible to be used for mortgage loan approval. Household annual
gross income shall be calculated by projecting current gross income
over a twelve-month period.
F.
Assets not earning a verifiable income shall have an annual imputed
interest income using a current average annual savings interest rate.
Assets not earning income include, but are not limited to, present
real estate equity. Applicants owning real estate must produce documentation
of a market value appraisal and outstanding mortgage debt. The difference
shall be treated as the monetary value of the asset and the imputed
interest added to income. If the applicant household owns a primary
residence with no mortgage on the property valued at or above the
regional asset limit as published annually by COAH or successor agency,
a certificate of eligibility shall be denied by the administrative
agent, unless the applicant's existing monthly housing costs
(including principal, interest, taxes, homeowner and private mortgage
insurance, and condominium and homeowners' association fees as
applicable) exceed 38% of the household's eligible monthly income.
G.
Rent from real estate shall be considered income, after deduction
of any mortgage payments, real estate taxes, property owner's
insurance and reasonable property management expenses as reported
to the Internal Revenue Service. Other expenses are not deductible.
If actual rent is less than fair market rent, the administrative agent
shall impute a fair market rent.
H.
What income includes; does not include:
(1)
Income does not include benefits, payments, rebates or credits received
under any of the following:
(a)
Federal or state low-income energy assistance programs;
(b)
Food stamps, payments received for foster care, relocation assistance
benefits;
(c)
Income of live-in attendants, scholarships, student loans, and
personal property, including but not limited to automobiles; and
(d)
Lump-sum additions to assets such as inheritances, lottery winnings,
gifts, insurance settlements, and part-time income of persons enrolled
as full-time students.
(2)
Income, however, does include interest and other earnings from the
investment of any of the foregoing benefits, payments, rebates, or
credits.
I.
The administrative agent shall require each member of an applicant
household who is 18 years of age or older to provide documentation
to verify the member's income, including income received by adults
on behalf of minor children for their benefit. Household members 18
years of age or older who do not receive income must produce documentation
of current status. Income verification documentation may include,
but is not limited to, the following for each and every member of
a household who is 18 years of age or older:
(1)
Four consecutive pay stubs, not more than 120 days old, including
bonuses, overtime or tips, or a letter from the employer stating the
present annual income figure;
(2)
Copies of federal and state income tax returns for each of the preceding
three tax years;
(3)
A letter or appropriate reporting form verifying monthly benefits
such as social security, unemployment, welfare, disability or pension
income (monthly or annually);
(4)
A letter or appropriate reporting form verifying any other sources
of income claimed by the applicant, such as alimony or child support;
(5)
Income reports from banks or other financial institutions holding
or managing trust funds, money market accounts, certificates of deposit,
stocks or bonds; and
(6)
Evidence or reports of income from directly held assets such as real
estate or businesses.
(7)
Court-ordered payments for alimony or child support to another household,
whether or not it is being paid regularly, shall be excluded from
income for purposes of determining income eligibility.
J.
At the discretion of the administrative agent, households may also
be required to produce documentation of household composition for
determining the correct unit size and applicable median income guide.
K.
Withholding of a certificate of eligibility.
(1)
A certificate of eligibility may be withheld by the administrative
agent as a result of an applicant's inability to demonstrate
sufficient present assets for down payment or security deposit purposes,
subject to development phasing that may provide opportunity for future
savings.
(2)
A certificate of eligibility may be withheld by the administrative
agent as a result of an applicant's inability to verify funds
claimed as assets, household composition or other facts represented.
(3)
A certificate of eligibility shall be denied by the administrative
agent as a result of any willful and material misstatement of fact
made by the applicant in seeking eligibility.
L.
The administrative agent shall screen households that apply for low-
and moderate-income housing for preliminary income eligibility, by
comparing their total gross annual income to the regional low- and
moderate-income limits adopted for that year by COAH or successor
agency.
M.
The following information shall promptly be provided to the Borough's
administrative agent by the developer or sponsor of any project containing
any affordable units subject to the requirements of this chapter,
upon the latter of either final municipal land use approval or issuance
of a grant contract by a governmental authority:
(1)
The total number of units in the project, and number of restricted
units, broken down by bedroom size, identifying which are low- and
which are moderate-income dwellings, and including street addresses
of restricted dwellings;
(2)
Floor plans of all affordable dwellings, including complete and accurate
identification of uses and dimensions of all rooms;
(3)
A project map identifying the locations of low- and moderate-income
and market dwellings;
(4)
A list of project principals or partners, together with a list of
all other affordable projects in which they have been involved over
the previous five years;
(5)
Projected construction schedule;
(6)
Proposed pricing for all units, including any purchaser options and
add-on items;
(7)
A list of all public funding sources and copies of grant or loan
agreements for those sources;
(8)
Condominium fees or homeowners' association and any other maintenance
or other fees;
(9)
Estimated real property taxes for sale units;
(10)
Sewer, trash disposal and any other utility assessments;
(11)
Flood insurance requirement, if applicable;
(12)
A description of all HVAC systems;
(13)
Location of any common areas and elevators;
(14)
Proposed form of lease for any rental units;
(15)
The name of the person who will be responsible for official
contact with the Borough's administrative agent for the duration
of the project;
(16)
The name and qualifications of the developer's administrative
agent; and
(17)
The state-approved planned real estate development public offering
statement and/or master deed where available or applicable.
N.
In referring certified households to specific restricted dwellings,
to the extent feasible, and without causing an undue delay in occupying
the unit, the Borough's or developer's administrative agent
shall strive to:
(1)
Provide an occupant for each unit bedroom;
(2)
Provide children of different sex with separate bedrooms; and
(3)
Prevent more than two persons from occupying a single bedroom.
(4)
Provide separate bedrooms for parents and children.
(5)
The administrative agent shall employ a random selection process
when referring households for certification to affordable dwellings,
except as permitted by law.
O.
Waiting list procedures.
(1)
Households remaining on a waiting list shall update the application
no later than April 30 each year, including the most recent federal
income tax return of each member of the proposed household and such
other updated income and other information requested on the application.
(2)
Households on the waiting list which have not submitted the required
information by May 15 each year shall be notified by certified mail,
mailed to the address on file that they have until June 30 of that
year to provide the information or they shall be removed from the
waiting list.
(3)
Any household whose income or priority category has changed such
that the household has become eligible for a different category of
housing or priority list shall be placed on the appropriate list without
penalty or favor as of the date of the original application.
(4)
Any household whose income has increased to the degree that it is
no longer eligible for low- or moderate-income housing shall be removed
from the waiting list.
(5)
If the administrative agent has reason to believe that the information
on file is erroneous or incomplete, he or she shall have the right
to conduct an investigation and request any additional information
deemed necessary to obtain accurate household information. If an applicant
does not cooperate in such investigation or refuses to reply with
the requested additional information within 30 days of said request,
the applicant shall be removed from the list.
(6)
All applications shall be notarized and certified complete and accurate.
Anyone knowingly submitting incomplete, inaccurate, incorrect or false
information may be removed from eligibility for very-low-, low- and
moderate-income dwellings. All information submitted to the administrative
agent for the purposes of determining applicant eligibility shall
be strictly confidential and not considered a public record.
(7)
Prior to the time of availability of a very-low, low- and moderate-income dwelling, the administrative agent shall notify by certified mail the top three households on the waiting list for the type of dwelling available, its location and the estimated date it will be available. If a purchaser or tenant cannot be found from the top three households on the waiting list, notice shall be sent to the fourth, fifth, etc., household until a purchaser or tenant is found. The household shall, within 14 days of mailing, notify the administrative agent, in writing, of its intent to occupy the dwelling and, if selected, its intent to comply with the requirements of Subsection O(8), below, within 15 days. Any household which fails to respond to the notice or chooses to reject a specific dwelling by informing the administrative agent in writing, shall retain its priority and shall be notified of available dwellings in the future, except that if a household chooses to reject a dwelling or fails to respond three times, it shall be removed from the list and must reapply and requalify if it wishes to be placed on the list at a new qualified priority.
(8)
At the time of notice to a household of the availability of an appropriate
type of dwelling and if the household notifies the administrative
agent of its intent to occupy the dwelling and that household is selected
for occupancy, each household member shall update the records on file
and recertify the accuracy of the information as required herein.
Information shall be reviewed and the eligibility status reconfirmed.
The household selected shall only at that point proceed to make the
legal and financial arrangements to acquire or lease the dwelling.
(9)
If a household selected for occupancy is unable to obtain financing, it shall lose its eligibility for that dwelling, after notice, but shall retain its priority status for a similar appropriate dwelling as other dwellings become available and as long as the household remains eligible. When notified of the availability of another dwelling, updating and recertifying data as outlined in Subsection O(8) above is required.
A.
Both the buyer and seller of low- and moderate-income dwellings,
including the initial seller, shall comply with N.J.A.C. 5:80-26.5,
Control periods for ownership units; 5:80-26.6, Price restrictions
for ownership units; 5:80-26.7, Buyer income eligibility for ownership
units; 5:80-26.8, Limitations on indebtedness secured by ownership
unit; subordination; 5:80-26.9, Capital improvements to ownership
units; and 5:80-26.10, Maintenance of restricted ownership units,
as they may be amended or superseded.
B.
Deed restrictions, restrictive covenants, form of release, payment
of recapture amounts, certificates of eligibility, mortgage notes
and other property documents for affordable housing shall be as required
in N.J.A.C. 5:80-26.1 et seq., as it may be amended or superseded.
C.
No person may buy a restricted dwelling who has not received a certificate of eligibility from the administrative agent, or the developer's administrative agent for the initial sale, pursuant to the procedures in § 193-4.
D.
Deed provisions on sale of rental dwellings. A deed conveying title
from an owner of a rental dwelling occupied by very-low, low- and
moderate-income families shall include a clause which shall read,
"The rental dwelling(s) located in the premises conveyed herein are
subject to the terms, conditions, restrictions, limitations and provisions
as set forth in an ordinance of the Borough of Berlin entitled 'An
Ordinance Establishing Administrative Procedures and Regulations for
the Implementation of Low- and Moderate-Income Housing Plans in the
Borough of Berlin, in the County of Camden and State of New Jersey,'
as amended and supplemented."
E.
Exempt transactions. The following transfer of ownership of a dwelling
shall be deemed "nonsales" for the purposes of this chapter:
(1)
Between husband and wife.
(2)
Between former spouses ordered as a result of a judicial decree of
divorce (and not including sales to third parties).
(3)
To an heir as a result of inheritance.
(4)
Through an order of the Superior Court or other court, in a foreclosure
proceeding or transfer in lieu of foreclosure after a foreclosure
proceeding has commenced.
(5)
Statement of exemption. To permit the transfer of title under this
subsection or to permit the sale, resale or lease of an affordable
dwelling, the administrative agent shall issue a statement of exemption
in recordable form to the person receiving title to the dwelling.
A copy of the statement of exemption shall be given, at the time of
closing, to the seller of the dwelling. The statement of exemption
issued pursuant to this subsection shall exempt only the specific
sale, transfer, resale or rental transaction for which it was issued.
It shall not exempt the transaction for the low-income/moderate-income
resale/rerental price restrictions set forth in this chapter.
(6)
The restrictions of resale or rerental to a purchaser in accordance with this chapter shall apply to all subsequent resales or rerentals of affordable dwellings unless a new statement of exemption is issued pursuant to this Subsection E specifically for a subsequent resale or rerental transaction. All other terms, provisions and restrictions of this chapter shall remain in full force and effect. Such purchaser, however, shall take title and possession to the affordable dwelling, subject to the terms, restrictions, conditions and provisions of this chapter, including those addressing use, occupancy, improvement and resale, as though such purchaser were, in fact, a qualified very-low, low- and moderate-income purchaser.
(7)
Where title is acquired pursuant to Subsection E(1) through (4) of this section, the cost basis for subsequent resale shall be fixed at the same price as the last preceding nonexempt sale. That price may be adjusted in accordance with the procedures of this chapter through application of the appropriate Consumer Price Index changes since the date of that nonexempt sale.
(8)
Nothing herein shall preclude the Borough of Berlin from purchasing
the affordable dwelling and holding, renting or conveying it to a
qualified very-low, low- and moderate-income purchaser if such option
is exercised prior to the owner accepting a bona fide offer to purchase
such dwelling.
(9)
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the administrative agent shall determine
the restricted price for the unit and shall also determine the nonrestricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value without the restrictions in place.
(10)
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the administrative agent a recapture
note obligating the purchaser (as well as the purchaser's heirs,
successors and assigns) to repay, upon the first nonexempt sale after
the unit's release from the restrictions set forth in this chapter,
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.
(11)
The affordability controls set forth in this chapter shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
(12)
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all code standards upon the first
transfer of title that follows the expiration of the applicable minimum
control period provided under N.J.A.C. 5:80-26.5(a), as may be amended
and supplemented.
A.
Affordability average; bedroom distribution.
(1)
In each affordable development, at least 50% of the restricted dwellings
within each bedroom distribution shall be low-income dwellings, including
very-low dwellings, and the remainder may be moderate-income dwellings.
(2)
At least 10% of all affordable rental units shall be very-low-income
units (affordable to households earning 30% or less of median income).
The very-low-income units shall be counted as part of the required
number of low-income units within the development.
(3)
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units is no
greater than 20% of the total low- and moderate-income units;
(b)
At least 30% of all low- and moderate-income units are two-bedroom
units;
(c)
At least 20% of all low- and moderate-income units are three-bedroom
units; and
(d)
The remainder, if any, may be allocated at the discretion of
the developer.
(e)
Age-restricted low- and moderate-income units may utilize a
modified bedroom distribution. At a minimum, the number of bedrooms
shall equal the number of age-restricted low- and moderate-income
units within the affordable development. The standard may be met by
creating all one-bedroom units or by creating a two-bedroom unit for
each efficiency unit.
(4)
In establishing rents and sales prices of affordable housing units,
the administrative agent shall follow the procedures set forth in
UHAC and as promulgated by COAH, utilizing the regional income limits
established by COAH.
(5)
The maximum rent for affordable units within each affordable development
shall be affordable to households earning no more than 60% of median
income and the average rent for low- and moderate-income units shall
be affordable to households earning no more than 52% of median income.
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units, provided that at least 10% of all low-
and moderate-income units shall be affordable to households earning
no more than 30% of median income.
(6)
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. Each affordable development shall
achieve an affordability average of 55% for restricted-ownership units.
In achieving this affordability average, moderate-income ownership
units shall be available for at least three different prices for each
bedroom type, and low-income ownership units shall be available for
at least two different prices for each bedroom type.
B.
Initial pricing and annual increases of affordable dwellings.
(1)
Owner-occupied dwellings initial pricing. 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 it may be
amended and supplemented; provided, however, that the price shall
be subject to the affordability average requirement as noted above.
(2)
Rental dwellings initial pricing. The initial rent for a restricted rental unit shall be calculated so as not to exceed 30% of the eligible monthly income of the appropriate household size as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented; provided, however, that the rent shall be subject to the affordability average requirement as noted in Subsection A(5) and (6) above and the utility allowance in Subsection B(5), below.
(3)
Owner-occupied dwellings annual increase. 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 (published annually by COAH). In no event shall the maximum
resale price established by the administrative agent be lower than
the last recorded purchase price.
(4)
Rental dwellings annual increase. The rent of low- and moderate-income
units may be increased annually based on the percentage increase in
the Housing Consumer Price Index for the United States (published
annually by COAH). 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.
(5)
Utilities. Tenant-paid utilities that are included in the utility
allowance shall be so stated in the lease and shall be consistent
with the utility allowance approved by the New Jersey Department of
Community Affairs for its Section 8 program.
C.
Price restrictions for restricted ownership units, homeowners'
association fees and resale prices.
(1)
The initial purchase price for a restricted ownership unit shall
be approved by the administrative agent.
(2)
The administrative agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
(3)
The method used to determine the condominium association fee amounts
and special assessments shall be indistinguishable between the low-
and moderate-income unit owners and the market unit owners.
D.
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit on the basis
of eligible capital improvements. Eligible capital improvements shall
be those that render the unit suitable for a larger household or the
addition of a bathroom.
E.
Occupancy standards.
(1)
In determining the initial rents and initial sales prices for compliance
with the affordable average requirements for restricted units other
than assisted living facilities, the following standards shall be
used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and-one-half-person
household;
(e)
A four-bedroom unit shall be affordable to a six-person household.
(2)
For assisted living facilities, the following standards shall be
used:
(3)
In referring certified households to specific restricted units, to
the extent feasible and without causing an undue delay in occupying
the unit, the administrative agent shall strive to:
F.
Utilities and heating source. Tenant-paid utilities that are included
in the utility allowance shall be so stated in the lease and shall
be consistent with the utility allowance approved by DCA for its Section
8 program. Affordable units shall utilize the same type of heating
source as market units within the affordable development.
G.
Appearance. The facade of an affordable housing unit shall be indistinguishable
from those of market units in terms of the use of exterior materials,
windows, doors, reveal, roof pitch, color, or other material. Affordable
housing units shall be fully integrated with market rate housing to
the greatest extent feasible.
H.
Tenure. For inclusionary developments with a single housing type,
the affordable housing units shall have the same tenure as the market
housing units.
I.
Ownership unit affordability controls.
(1)
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
(2)
Each restricted ownership unit shall remain subject to the requirements
of the Uniform Housing Affordability Controls (N.J.A.C. 5:80-26.1
et seq.) until the Borough of Berlin elects to release the unit from
such requirements pursuant to action taken in compliance with N.J.A.C.
5:80-26.5(g). Prior to such municipal election, a restricted ownership
unit shall remain subject to the requirements of N.J.A.C. 5:80-26.5
for a period of at least 30 years.
(3)
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
(4)
Each restricted ownership unit shall remain in compliance with and
subject to the requirements of the Uniform Housing Affordability Controls,
N.J.A.C. 5:80-26.5 for control periods, N.J.A.C. 5:80-26.6 for price
restrictions, N.J.A.C. 5:80-26.7 for buyer income eligibility, N.J.A.C.
5:80-26.8 for limitations on indebtedness and subordination, N.J.A.C.
5:80-26.9 for capital improvements, and N.J.A.C. 5:80-26.10 for maintenance.
J.
Limitations on indebtedness secured by ownership unit; subordination.
(1)
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the administrative agent shall determine in writing
that the proposed indebtedness complies with the provisions of this
section.
(2)
With the exception of original purchase money mortgages, during a
control period neither an owner nor a lender shall at any time cause
or permit the total indebtedness secured by a restricted ownership
unit to exceed 95% of the maximum allowable resale price of that unit,
as such price is determined by the administrative agent in accordance
with N.J.A.C. 5:80-26.6(b).
K.
Capital improvements to ownership units.
(1)
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit on the basis
of capital improvements 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 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 that the price, which shall
be subject to ten-year, straight-line depreciation, has been approved
by the administrative agent. Unless otherwise approved by the administrative
agent, 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.
Notice of resale, recapture covenant and 95/5 purchase options.
(1)
The owner of the property is required to notify the administrative
agent and COAH by certified mail of any intent to sell the property
90 days prior to entering into an agreement for the first nonexempt
sale of the property after the conclusion of the period of affordability
controls on restricted units as in effect at the time the property
was first restricted as part of the Affordable Housing Program.
(2)
Upon the first such nonexempt sale of the property, 95% of the difference
between i) the actual sale price and ii) the regulated maximum sales
price that would be applicable were the period of affordability controls
on restricted units still in effect shall be paid at closing to the
New Jersey Department of Community Affairs, acting as receiving agent
for the local municipality.
(3)
Such nonexempt sale is subject to the options provided for in N.J.A.C.
5:80-26.20 (Option to buy 95/5 units), N.J.A.C. 5:80-26.21 (Municipal
option on 95/5 units), N.J.A.C. 5:80-26.22 (State option on 95/5 units),
N.J.A.C. 5:80-26.23 (Non-profit option on 95/5 units), N.J.A.C. 5:80-26.24
(Seller option on 95/5 units), N.J.A.C. 5:80-26.25 (Municipal rejection
of repayment option on 95/5 units) and N.J.A.C. 5:80-26.26 (Continued
application of options to create, rehabilitate or maintain 95/5 units)
of UHAC.
M.
Rental unit affordability controls.
(1)
Each restricted rental unit shall remain subject to the requirements
of the Uniform Housing Affordability Controls until the Borough of
Berlin elects to release the unit from such requirement pursuant to
action taken in compliance with N.J.A.C. 5:80-26.11(e). Prior to such
a municipal election, a restricted rental unit shall remain subject
to the requirements of N.J.A.C. 5:80-26.11, for a period of 30 years.
(2)
Each restricted rental unit shall remain in compliance with and subject
to the requirements of the Uniform Housing Affordability Controls,
N.J.A.C. 5:80-26.11 for control periods, N.J.A.C. 5:80-26.12 for restrictions
on rents, and N.J.A.C. 5:80-26.13 for tenant income eligibility.
(3)
Deeds of all real property that include restricted rental units shall
contain deed restriction language. The deed restriction shall have
priority over all mortgages on the property, and the deed restriction
shall be filed by the developer or seller with the records office
of the County of Camden. A copy of the filed document shall be provided
to the administrative agent within 30 days of the receipt of a certificate
of occupancy.
(4)
A restricted rental unit shall remain subject to the affordability
controls of this chapter, despite the occurrence of any of the following
events:
N.
Rent restrictions for rental units; leases.
(1)
A written lease shall be required for all restricted rental units,
except for units in an assisted living residence, and tenants shall
be responsible for security deposits and the full amount of the rent
as stated on the lease. A copy of the current lease for each restricted
rental unit shall be provided to the administrative agent.
(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.
(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 to be applied to
the costs of administering the controls applicable to the unit as
set forth in this chapter.
O.
Phasing.
(1)
A phasing schedule for inclusionary developments shall be submitted
at the time of application for development conforming to the minimum
ratios of market to affordable dwellings in the following table:
|
Percentage of Market Dwellings Completed
|
Minimum Percentage of Very-Low-, Low- and Moderate-Income
Dwellings That Must Be Completed
| |
|---|---|---|
|
25%
|
0%
| |
|
25% + 1 dwelling
|
10%
| |
|
50% + 1 dwelling
|
50%
| |
|
75% + 1 dwelling
|
75%
| |
|
90% + 1 dwelling
|
100%
|
(2)
Where the phasing schedule and bedroom distribution result in a fraction,
the number shall be rounded to the next highest whole number.
P.
Accessibility requirements. The following barrier-free accessibility
and adaptability requirements shall apply to all new construction:
(1)
The first floor of all restricted townhouse dwelling units and all
restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7 and N.J.A.C. 5:97-3.14.
(2)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
(a)
An adaptable toilet and bathing facility on the first floor;
(b)
An adaptable kitchen on the first floor;
(c)
An interior accessible route of travel on the first floor;
(d)
An interior accessible route of travel shall not be required
between stories within an individual unit;
(e)
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
and
(f)
An accessible entranceway in accordance with N.J.S.A. 52:27D-311a
et seq. and the Barrier Free Subcode, N.J.A.C. 5:23-7 and N.J.A.C.
5:97-3.14, or evidence that the municipality has collected funds from
the developer sufficient to make 10% of the adaptable entrances in
the development accessible:
[1]
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]
To this end, the builder of restricted units shall deposit funds
within the Borough of Berlin's Affordable Housing Trust Fund
sufficient to install accessible entrances in 10% of the affordable
units that have been constructed with adaptable entrances.
[3]
The funds deposited under Subsection P(2)(f)[2] above shall be used by the Borough for the sole purpose of making the adaptable entrance of any affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
(g)
The developer of the restricted units shall submit a design
plan and cost estimate for the conversion from adaptable to accessible
entrances to the Construction Code Official.
(h)
Once the Construction Code Official has determined that the
design plan to convert the unit entrances from adaptable to accessible
meets the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7
and N.J.A.C. 5:97-3.14, and that the cost estimate of such conversion
is reasonable, payment shall be made into the municipality's
Affordable Housing Trust Fund by the Chief Financial Officer who shall
ensure that the funds are deposited into the Affordable Housing Trust
Fund and appropriately earmarked.
Q.
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that physical or environmental conditions
of the site render it 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.
A.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, municipal fines, a requirement
for household recertification, acceleration of all sums due under
a mortgage, recoupment of any funds from a sale in the violation of
the regulations, injunctive relief to prevent further violation of
the regulations, entry on the premises, and specific performance.
B.
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
(1)
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation, or violations, of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
found by the court to have violated any provision of the regulations
governing affordable housing units, the owner, developer or tenant
shall be subject to one or more of the following penalties, at the
discretion of the court:
(a)
A fine of not more than $1,000 or imprisonment for a period
not to exceed 90 days, or both. Each and every day that the violation
continues or exists shall be considered a separate and specific violation
of these provisions and not as a continuing offense;
(b)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Berlin Borough Affordable Housing Trust Fund
of the gross amount of rent illegally collected;
(c)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation
costs, as determined by the court.
(2)
The municipality may file a court action in the Superior Court seeking
a judgment, which would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any judgment shall be enforceable as if the same were
a judgment of default of the first purchase money mortgage and shall
constitute a lien against the low- and moderate-income unit.
(3)
Such judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the County Sheriff, at which time
the low- and moderate-income unit of the violating owner shall be
sold at a sale price which is not less than the amount necessary to
fully satisfy and pay off any first purchase money mortgage and prior
liens and the costs of the enforcement proceedings incurred by the
municipality, including attorney's fees. The violating owner
shall have the right to possession terminated as well as the title
conveyed pursuant to the sheriff's sale.
C.
The proceeds of the sheriff's sale shall first be applied to satisfy the first purchase money mortgage lien upon the dwelling and any prior liens on the dwelling. The excess, if any, shall be applied to reimburse the Borough 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 sheriffs sale are insufficient to reimburse the Borough in full as aforesaid, the violating owner shall be personally responsible for the deficiency, in addition to any and all costs incurred by the Borough in connection with collecting said deficiency. The remainder, if any, up to a maximum of the amount the owner would be entitled to if he or she were to sell the dwelling as permitted by N.J.A.C. 5:80-26.1 et seq., shall be placed in escrow by the Borough for the owner and shall be held in such escrow for a period of two years or until such time as the owner shall make a claim with the Borough for the same. Failure of the owner to claim said sum within the two-year period shall automatically result in a forfeiture of said remainder to the Borough for its use pursuant to the Affordable Housing Fund established in § 193-13[1] of this chapter. Any interest accrued or earned on the
remainder while being held in escrow shall belong to and shall be
paid to the Borough's Affordable Housing Fund, whether the remainder
is paid to the owner or forfeited to the Borough. Any excess funds
derived over and above the sum due the owner shall be paid over to
the Borough's Affordable Housing Fund.
D.
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the sheriff's sale, subject to the restrictions
and provisions of the regulations governing the affordable housing
unit. The owner determined to be in violation of the provisions of
this plan and from whom title and possession were taken by means of
the Sheriff's sale shall not be entitled to any right of redemption.
E.
If there are no bidders at the Sheriff's sale or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the municipality may acquire title to the low- and moderate-income
unit by satisfying the first purchase money mortgage and any prior
liens and crediting the violating owner with an amount equal to the
difference between the first purchase money mortgage and any prior
liens and costs of the enforcement proceedings, including legal fees
and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
F.
Failure of the low- and moderate-income unit to be either sold at
the sheriff's sale or acquired by the municipality shall obligate
the owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
G.
The owner shall remain fully obligated, responsible and liable for
complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
H.
Borough's right to cure. The Borough may, at its option, advance
and pay all sums necessary to protect, preserve and retain the dwelling
as an affordable dwelling, subject to the terms of this chapter. All
sums so advanced and paid by the Borough shall become a lien against
said dwelling and shall have a higher priority than any lien except
the first purchase money mortgage lien and liens by duly authorized
government agencies. Such sums may include but are not limited to
insurance premiums, taxes, assessments (public or private) and costs
of repair necessary to bring the dwelling up to any and all applicable
local, state or federal codes and liens which may be or become prior
and senior to any first purchase money mortgage as a lien on the dwelling
or any part thereof. If, in the event of a default or nonpayment by
the owner of an affordable dwelling, any first mortgagee or other
creditor of an owner of an affordable dwelling exercises its contractual
or legal remedies available, the owner shall notify the administrative
agent and the Mayor and Council, in writing, within 10 days of notification
by the first mortgagee or creditor and no later than 10 days after
service of any summons and complaint, and the Borough shall have the
option to purchase, redeem or cure any default upon such terms and
conditions as may be agreeable to all parties in interest and/or to
acquire the first purchase money mortgage to the dwelling, thereby
replacing the first mortgagee as the first mortgagee of the dwelling.
The Borough shall have the same priority of lien as was held by the
first mortgagee at the time the Borough acquires such first purchase
money mortgage and shall have the right of subrogation with respect
to any other claim or lien it satisfies or acquires.
I.
Provisions for first purchase money mortgagees.
(1)
The terms and restrictions of this section shall be subordinate only
to a first purchase money mortgage lien on any affordable dwelling
and in no way shall impair the first mortgagee's ability to exercise
the contract remedies available to it in the event of default as set
forth in the first purchase money mortgage. The first mortgagee and/or
mortgage servicer shall serve written notice upon the Borough within
10 days after the first purchase money mortgage is two months in arrears
and again within 10 calendar days of the filing of a complaint seeking
foreclosure of the first purchase money mortgage held on an affordable
dwelling. However, a judgment of foreclosure upon the property shall
in no instance terminate the conditions and requirements of this chapter
maintaining the dwelling as an affordable, income-restricted residence.
(2)
The obligation of the first mortgagee and servicer to notify the
Borough shall cease automatically and immediately upon the sale of
the first purchase money mortgage to the Federal National Mortgage
Association or in the secondary mortgage market, unless the rules
and regulations or guidelines of the Federal National Mortgage Association
are amended so as to not prohibit or exclude placing such obligation
upon the holder of the mortgage or its service representative, in
which case, an instrument duly evidencing the same must be recorded
with the Office of the Clerk, Camden County, New Jersey, before any
such obligation shall exist. Provided that the first mortgagee is
obligated to give the Borough the above-mentioned notices, the first
mortgagee shall also serve written notice of any proposed foreclosure
sale upon the Borough at least 30 days prior to the first scheduled
date of such sale. The first mortgagee shall serve notice upon the
Borough within 30 days of the sale of the first purchase money mortgage
to the Federal National Mortgage Association or in the secondary mortgage
market.
(3)
The Borough of Berlin or any instrumentality designated by the Borough
shall have the right to purchase any mortgage which is in default
at any time prior to the entry of a foreclosure judgment or within
the redemption period thereafter. Notification of a default and of
the institution of a foreclosure action and of a sheriff's sale
shall be served, in writing, upon the Borough Clerk. The Borough of
Berlin shall at all times be considered a party in interest and shall
have the right to be joined as a party defendant and/or shall have
the right to intervene in any foreclosure action seeking foreclosure
of a first mortgage and/or shall have the right to redeem and acquire
the owner's equity of redemption or to acquire the dwelling from
the owner upon such terms and conditions as may be determined by the
Borough.
(4)
Surplus funds. In the event of a foreclosure sale by the holder of the first purchase money mortgage, the owner shall be personally obligated to pay to the Borough any excess funds, but only to the extent that such excess funds exceed the difference between what the owner could have resold his dwelling for under this chapter at the time of the foreclosure sale and the amount necessary to redeem and satisfy the first purchase money mortgage debt, including costs of foreclosure and costs of repairs necessary to bring the dwelling up to any and all applicable local, state or federal codes. For the purposes of this subsection, excess funds shall be the total paid to the sheriff in excess of the amount required to pay and satisfy the first purchase money mortgage, including the costs of foreclosure, even if junior creditors actually receive payment from said surplus funds to the exclusion of the owner. The Borough is hereby given a first priority lien, second only to the first mortgagee for any taxes or public assessments by a duly authorized governmental body up to the full amount of excess funds. This obligation of the owner to pay this full amount to the Borough shall be deemed to be a personal obligation of the owner of record at the time of the foreclosure sale, and the Borough is hereby empowered to enforce this obligation in any appropriate court of law or equity as though the same were a personal contractual obligation of the owner. Neither the first mortgagee nor the purchaser at the foreclosure sale shall be responsible or liable to the Borough for any portion of this excess. The Borough shall deposit any funds received in the Affordable Housing Fund and use it for the purpose as set forth in § 193-13 of this chapter.
A.
Nothing in these rules should be construed to limit the rights and
duties of the owner and tenant to maintain the dwelling in accordance
with all appropriate New Jersey State codes.
B.
Notwithstanding anything to the contrary in this chapter, any member
of a household occupying a dwelling under this chapter and subject
to the regulations of the Borough is subject to eviction for any reasons
allowed under applicable New Jersey law. The provisions of this chapter
are not intended to confer any additional rights or obligations on
property owners or tenants other than those mandated by statute or
required by the courts of the State of New Jersey or the Council on
Affordable Housing.
