[Added 11-16-2009 by Ord.
No. 2009-2994]
A.
On December 11, 2008, the Middletown Township Planning Board adopted
an amended Master Plan Housing Element and Fair Share Plan.
B.
On December 30, 2008, the Township Committee subsequently endorsed
the action of the Planning Board and petitioned the New Jersey Council
on Affordable Housing (COAH) for substantive certification of said
Fair Share Plan.
C.
On October 14, 2009, COAH granted the Township substantive certification
by COAH Resolution No. 42-09.
D.
Pursuant to N.J.A.C. 5:96-6.3(e), COAH's grant of substantive certification
is explicitly conditioned upon the Township's adoption of an ordinance
implementing its Fair Share Plan within 45 days of receipt of substantive
certification.
E.
COAH's resolution specifically provides that if "Middletown Township
fails to timely adopt its Fair Share Ordinances, COAH's grant of substantive
certification shall be void and of no force and effect. . ."
F.
It is in the best interests of the taxpayers of the Township of Middletown
to take these steps to ensure it is effectively protected from litigation
by developers in the form of builder's remedy actions.
A.
This article is intended to assure that low- and moderate-income
units ("affordable units") are created with controls on affordability
over time and that low- and moderate-income households shall occupy
these units. This article shall apply except where inconsistent with
applicable laws and regulations.
B.
The Township of Middletown Planning Board has adopted a Housing Element
and Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A.
40:55D-1 et seq. The Fair Share Plan has been endorsed by the governing
body. The Fair Share Plan describes the ways Township of Middletown
shall address its fair share for low- and moderate-income housing
as determined by the COAH and documented in the housing element.
C.
This article implements and incorporates the Fair Share Plan and
addresses the requirements of N.J.A.C. 5:97, as may be amended and
supplemented.
D.
The Township of Middletown shall file monitoring reports with COAH
in accordance with N.J.A.C. 5:96, tracking the status of the implementation
of the Housing Element and Fair Share Plan. Any plan evaluation report
of the Housing Element and Fair Share Plan and monitoring prepared
by COAH in accordance with N.J.A.C. 5:96 shall be available to the
public at the Township of Middletown Municipal Building, Municipal
Clerk's Office, 1 Kings Highway, Middletown, New Jersey, or from COAH
at 101 South Broad Street, Trenton, New Jersey and on COAH's website,
www.nj.gov/dca/affiliates/coah.
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 responsible for the administration of affordable
units in accordance with this article, N.J.A.C. 5:96, N.J.A.C. 5:97
and N.J.A.C. 5:80-26.1 et seq.
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 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.
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, credited
pursuant to N.J.A.C. 5:97-4, and/or funded through an affordable housing
trust fund.
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;
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 moderate-income household.
The Council on Affordable Housing, which is in, but not of,
the Department of Community Affairs of the State of New Jersey, that
was established under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301
et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
require the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development, including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
A development containing both affordable units and market
rate units. This term includes, but is not necessarily limited to:
new construction, the conversion of a nonresidential structure to
residential and the creation of new affordable units through the reconstruction
of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the median household income.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building, which
include but are not limited to weatherization, roofing, plumbing (including
wells), heating, electricity, sanitary plumbing (including septic
systems), lead paint abatement or load-bearing structural systems.
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable county,
as adopted annually by COAH.
A household with a total gross annual household income in
excess of 50% but less than 80% of the median household income.
A restricted unit that is affordable to a moderate-income
household.
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class A
beneficiary and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by COAH's adopted regional income limits published annually
by COAH.
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
financed under UHORP or MONI.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the median household income.
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.
Township of Middletown has determined that it will use the following
mechanisms to satisfy its affordable housing obligations:
A.
Rehabilitation program.
(1)
Township of Middletown's rehabilitation program shall be designed
to renovate deficient housing units occupied by low- and moderate-income
households such that, after rehabilitation, these units will comply
with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28.
(2)
Both owner-occupied and renter-occupied units shall be eligible
for rehabilitation funds.
(3)
All rehabilitated units shall remain affordable to low- and
moderate-income households for a period of 10 years (the control period).
For owner-occupied units, the control period will be enforced with
a lien, and for renter-occupied units, the control period will be
enforced with a deed restriction.
(4)
The Township of Middletown shall dedicate a minimum of $10,000
for each unit to be rehabilitated through this program, reflecting
the minimum hard cost of rehabilitation of each unit.
(5)
The Township of Middletown shall adopt a resolution committing
to fund any shortfall in the rehabilitation program for the Township
of Middletown.
(6)
The Township of Middletown shall designate, subject to the approval
of COAH, one or more Administrative Agents to administer the rehabilitation
program in accordance with N.J.A.C. 5:96 and N.J.A.C. 5:97. The Administrative
Agent(s) shall provide a rehabilitation manual for the owner occupancy
rehabilitation program and a rehabilitation manual for the rental
occupancy rehabilitation program to be adopted by resolution of the
governing body and subject to approval of COAH. Both rehabilitation
manuals shall be available for public inspection in the Office of
the Municipal Clerk and in the office(s) of the Administrative Agent(s).
(7)
Units in a rehabilitation program shall be exempt from N.J.A.C.
5:97-9 and UHAC, but shall be administered in accordance with the
following:
(a)
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is re-rented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a low- or moderate-income household at an affordable rent
and affirmatively marketed pursuant to N.J.A.C. 5:97-9 and UHAC.
(b)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to N.J.A.C. 5:97-9 and UHAC.
(c)
Rents in rehabilitated units may increase annually based on
the standards in N.J.A.C. 5:97-9.
(d)
Applicant and/or tenant households shall be certified as income-eligible
in accordance with N.J.A.C. 5:97-9 and UHAC, except that households
in owner-occupied units shall be exempt from the regional asset limit.
B.
An accessory apartment program.
(1)
All accessory apartments shall meet the following conditions:
(a)
Accessory apartments are permitted by the Zoning Ordinance for
various zoning districts, provided the units are affordable to low-
and moderate-income households. Accessory apartments may be developed
as low-income or moderate-income units (accessory apartments may be
limited to only low- or only moderate-income units as determined in
the Fair Share Plan).
(b)
Accessory apartments shall comply with all applicable statutes
and regulations of the State of New Jersey in addition to all building
codes.
(c)
At the time of initial occupancy of the unit and for at least
10 years thereafter, the accessory apartment shall be rented only
to a household which is either a low- or moderate-income household.
(d)
Rents of accessory apartments shall be affordable to low- or
moderate-income households as per COAH and UHAC regulations.
(e)
There shall be a recorded deed or declaration of covenants and
restrictions applied to the property upon which the accessory apartment
is located running with the land and limiting its subsequent rental
or sale of the unit and the accessory apartment.
(f)
The appropriate utility authority must certify that there is
water and sewer infrastructure with sufficient capacity to serve the
proposed accessory apartment. Where the proposed location is served
by an individual well and/or septic system, the additional capacity
necessitated by the new unit must meet the appropriate NJDEP standards.
(g)
The Township of Middletown accessory apartment program shall
not restrict the number of bedrooms in any accessory apartment.
(h)
No accessory apartment created as a result of this article or
these regulations shall exceed the gross floor area of the existing
principal dwelling on the lot.
(2)
The maximum number of creditable accessory apartments shall
be equal to no more than 23, which is equal to 10% of the Township
of Middletown's Third Round fair share obligation.
(3)
The Township of Middletown shall designate an administrative
entity to administer the accessory apartment program that shall have
the following responsibilities:
(a)
The Administrative Agent shall administer the accessory apartment
program, including advertising, income-qualifying prospective renters,
setting rents and annual rent increases, maintaining a waiting list,
distributing the subsidy, securing certificates of occupancy, qualifying
properties, handling application forms, filing deed restrictions and
monitoring reports and affirmatively marketing the affordable accessory
apartment program in accordance with UHAC.
(b)
The administrative entity shall only deny an application for
an accessory apartment if the project is not in conformance with COAH's
requirements and/or the provisions of this article. All denials shall
be in writing with the reasons clearly stated.
(c)
In accordance with COAH requirements, Township of Middletown
shall provide at least $25,000 per unit to subsidize the creation
of each low-income accessory apartment or $20,000 per unit to subsidize
the creation of each moderate-income accessory apartment. Subsidy
may be used to fund actual construction costs and/or to provide compensation
for reduced rental rates.
(4)
Property owners wishing to apply to create an accessory apartment
shall submit to the administrative entity:
(a)
A sketch of floor plan(s) showing the location, size and relationship
of both the accessory apartment and the primary dwelling within the
building or in another structure;
(b)
Rough elevations showing the modifications of any exterior building
facade to which changes are proposed; and
(c)
A site development sketch showing the location of the existing
dwelling and other existing buildings; all property lines; proposed
addition, if any, along with the minimum building setback lines; the
required parking spaces for both dwelling units; and any man-made
conditions which might affect construction.
C.
Market-to-affordable program.
(1)
A market-to-affordable program is established to permit with purchase or subsidization of units through a written agreement with the property owner and sold or rented to low- and moderate-income households. Subject to the provisions of Subsection C(2)(c) below, the market-to-affordable programs may produce both low- and moderate-income units (the program may be limited to only low- or moderate-income units as per the Fair Share Plan).
(2)
The following provisions shall apply to market to affordable
programs:
(a)
At the time they are offered for sale or rental, eligible units
may be new, pre-owned or vacant.
(b)
The units shall be certified to be in sound condition as a result
of an inspection performed by a licensed Building Inspector.
(c)
The municipality will provide a minimum of $25,000 per unit
to subsidize each moderate-income unit and/or $30,000 per unit to
subsidize the each low-income unit, with additional subsidy depending
on the market prices or rents in a municipality.
(d)
The maximum number of creditable market-to-affordable units
shall be equal to no more than 10 for-sale units and 10 rental units
or a combined total of 10% of the fair share obligation, whichever
is greater. (Additional units may be approved by COAH if the municipality
demonstrates the successful completion of its initial market-to-affordable
program.)
(3)
The units shall comply with N.J.A.C. 5:97-9 and UHAC with the
following exceptions:
(a)
Bedroom distribution [N.J.A.C. 5:80-26.3(b) and (c)];
(b)
Low-/moderate-income split [N.J.A.C. 5:80-26.3(a)]; and
(c)
Affordability average [N.J.A.C. 5:80-26.3(d) and (e)]; however:
[1]
The maximum rent for a moderate-income unit shall
be affordable to households earning no more than 60% of median income
and the maximum rent for a low-income unit shall be affordable to
households earning no more than 44% of median income; and
[2]
The maximum sales price for a moderate-income unit
shall be affordable to households earning no more than 70% of median
income and the maximum sales price for a low-income unit shall be
affordable to households earning no more than 40% of median income.
A.
Presumptive densities and set-asides. To ensure the efficient use
of land through compact forms of development and to create realistic
opportunities for the construction of affordable housing, inclusionary
zoning permits minimum presumptive densities and presumptive maximum
affordable housing set-asides at sites satisfying the Township's growth
share obligation as follows:
(1)
For-sale developments:
(a)
Inclusionary zoning in Planning Area 1 permits residential development
at a presumptive minimum gross density of eight units per acre and
a presumptive maximum affordable housing set-aside of 25% of the total
number of units in the development.
(b)
The zoning of the following sites as identified in the Housing
Element and Fair Share Plan provide for 25% set-asides for restricted
units and a density of a minimum eight units per acre.
|
Site
|
Density
(dwelling units per gross acre)
|
Set-aside
| |
|---|---|---|---|
|
Steiner & Frustacci
|
8
|
25%
| |
|
199 Laurel Ave. Assoc.
|
8
|
25%
| |
|
Atlantic Pier
|
8
|
25%
| |
|
Meadowview
|
24
|
25%
|
(2)
Rental developments. Inclusionary zoning permits a presumptive
minimum density of 12 units per acre and a presumptive maximum affordable
housing set-aside of 20% of the total number of units in the development
and the zoning provides for at least 10% of the affordable units to
be affordable to households earning 30% or less of the area median
income for the COAH region. The zoning of the following site(s) provides
for a 20% set-aside for restricted units and a density of 12 units
per acre.
|
Site
|
Density
(dwelling units per gross acre)
|
Set-aside
| |
|---|---|---|---|
|
Taylor Lane
|
12
|
20%
|
(3)
Where an executed development agreement exists for affordable
housing on a specific site or sites, list the sites below and identify
the density and set-aside for each.
|
Site
|
Density
(dwelling units per gross acre)
|
Set-aside
| |
|---|---|---|---|
|
Four Ponds (aka Avaya)
|
5.5
|
20%
| |
|
Mountain Hill
|
4.5
|
20%
|
(4)
Additional incentives to subsidize the creation of affordable
housing available to very-low-income households may be negotiated
and specified in a developer's or redeveloper's agreement.
B.
Phasing. In inclusionary developments, the following schedule shall
be followed:
|
Maximum Percentage of Market-Rate
|
Minimum Percentage of Low- and Moderate-Income Units Completed
| |
|---|---|---|
|
25%
|
0%
| |
|
25% + 1
|
10%
| |
|
50%
|
50%
| |
|
75%
|
75%
| |
|
90%
|
100%
|
C.
Design. In inclusionary developments, to the extent possible, low-
and moderate-income units shall be integrated with the market units.
D.
Payments-in-lieu and off-site construction. The standards for the
collection of payments-in-lieu of constructing affordable units or
standards for constructing affordable units off-site, shall be in
accordance with N.J.A.C. 5:97-6.4.
E.
Utilities. Affordable units shall utilize the same type of heating
source as market units within the affordable development.
The following general guidelines apply to all newly constructed
developments that contain low- and moderate-income housing units,
including any currently unanticipated future developments that will
provide low- and moderate-income housing units.
A.
Low/moderate split and bedroom distribution of affordable housing
units.
(1)
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.
(2)
In each affordable development, at least 50% of the restricted
units within each bedroom distribution shall be low-income units.
(3)
Affordable developments that are not age-restricted shall be
structured in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
(b)
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
(c)
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
(d)
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(4)
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
The standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
B.
Accessibility requirements.
(1)
The first floor of all restricted townhouse dwelling units and
all restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7 and 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 as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7 and N.J.A.C. 5:97-3.14, or evidence that the Township of Middletown
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 Township of Middletown's Affordable housing
trust fund sufficient to install accessible entrances in 10% of the
affordable units that have been constructed with adaptable entrances.
[3]
The funds deposited under Subsection B(2)(f)[2] above shall be used by the Township of Middletown for the sole purpose of making the adaptable entrance of any affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[4]
The developer of the restricted units shall submit
a design plan and cost estimate for the conversion from adaptable
to accessible entrances to the Construction Official of the Township
of Middletown.
[5]
Once the Construction Official has determined that
the design plan to convert the unit entrances from adaptable to accessible
meet the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7
and N.J.A.C. 5:97-3.14, and that the cost estimate of such conversion
is reasonable, payment shall be made to the Township of Middletown's
Affordable Housing Trust Fund in care of the Municipal Treasurer,
who shall ensure that the funds are deposited into the affordable
housing trust fund and appropriately earmarked.
[6]
Full compliance with the foregoing provisions shall
not be required where an entity can demonstrate that it is site impracticable
to meet the requirements. Determinations of site impracticability
shall be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7
and N.J.A.C. 5:97-3.14.
C.
Maximum rents and sales prices.
(1)
In establishing rents and sales prices of affordable housing
units, the administrative agent shall follow the procedures set forth
in UHAC and in COAH, utilizing the regional income limits established
by COAH.
(2)
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted low- and
moderate-income units shall be affordable to households earning no
more than 52% of median income.
(3)
The developers and/or municipal sponsors of restricted rental
units shall establish at least one rent for each bedroom type for
both low-income and moderate-income units. At least 10% of all low-
and moderate-income rental units shall be affordable to households
earning no more than 30% of median income.
(4)
The maximum sales price of restricted ownership units within
each affordable development shall be affordable to households earning
no more than 70% of median income, and each affordable development
must achieve an affordability average of 55% for restricted ownership
units; in achieving this affordability average, moderate-income ownership
units must be available for at least three different prices for each
bedroom type, and low-income ownership units must be available for
at least two different prices for each bedroom type.
(5)
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units other
than assisted-living facilities, the following standards shall be
used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half
person household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and-one-half
person household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
(6)
In determining the initial rents for compliance with the affordability
average requirements for restricted units in assisted-living facilities,
the following standards shall be used:
(7)
The initial purchase price for all restricted ownership units
shall be calculated so that the monthly carrying cost of the unit,
including principal and interest (based on a mortgage loan equal to
95% of the purchase price and the Federal Reserve H.15 rate of interest),
taxes, homeowner and private mortgage insurance and condominium or
homeowner association fees do not exceed 28% of the eligible monthly
income of the appropriate size household as determined under N.J.A.C.
5:80-26.4, as may be amended and supplemented; provided, however,
that the price shall be subject to the affordability average requirement
of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(8)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
household size as determined under N.J.A.C. 5:80-26.4, as may be amended
and supplemented; provided, however, that the rent shall be subject
to the affordability average requirement of N.J.A.C. 5:80-26.3, as
may be amended and supplemented.
(9)
The price of owner-occupied low- and moderate-income units may
increase annually based on the percentage increase in the regional
median income limit for each housing region. In no event shall the
maximum resale price established by the administrative agent be lower
than the last recorded purchase price.
(10)
The rent of low- and moderate-income units may be increased
annually based on the percentage increase in the Housing Consumer
Price Index for the United States. This increase shall not exceed
9% in any one year. Rents for units constructed pursuant to low- income
housing tax credit regulations shall be indexed pursuant to the regulations
governing low-income housing tax credits.
(11)
Utilities. Tenant-paid utilities that are included in the utility
allowance shall be so stated in the lease and shall be consistent
with the utility allowance approved by DCA for its Section 8 program.
A.
Township of Middletown shall adopt by resolution an Affirmative Marketing
Plan, subject to approval of COAH, compliant with N.J.A.C. 5:80-26.15,
as may be amended and supplemented.
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 housing units which are being marketed
by a developer, sponsor or owner of affordable housing. The Affirmative
Marketing Plan is also intended to target those potentially eligible
persons who are least likely to apply for affordable units in that
region. It is a continuing program that directs all marketing activities
toward COAH Housing Region 4 and covers the period of deed restriction.
C.
The Affirmative Marketing Plan shall provide a regional preference
for all households that live and/or work in COAH Housing Region 4
comprised of Monmouth, Mercer and Ocean Counties.
D.
The Administrative Agent designated by the Township of Middletown
shall assure the affirmative marketing of all affordable units consistent
with the Affirmative Marketing Plan for the municipality.
E.
In implementing the affirmative marketing plan, the Administrative
Agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
F.
The affirmative marketing process for available affordable units
shall begin at least four months prior to the expected date of occupancy.
G.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner,
unless otherwise determined or agreed to by Township of Middletown.
A.
In referring certified households to specific restricted units, to
the extent feasible, and without causing an undue delay in occupying
the unit, the Administrative Agent shall strive to:
B.
Additional provisions related to occupancy standards (if any) shall
be provided in the municipal Operating Manual.
A.
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this article until the Township of Middletown elects to release
the unit from such requirements however, and prior to such an election,
a restricted ownership unit must remain subject to the requirements
of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at
least 30 years.
B.
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
C.
Prior to the issuance of the initial certificate of occupancy for
a restricted-ownership unit and upon each successive sale during the
period of restricted ownership, the administrative agent shall determine
the restricted price for the unit and shall also determine the nonrestricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value.
D.
At the time of the first sale of the unit, the purchaser shall execute
and deliver to the Administrative Agent a recapture note obligating
the purchaser (as well as the purchaser's heirs, successors and assigns)
to repay, upon the first nonexempt sale after the unit's release from
the requirements of this article, an amount equal to the difference
between the unit's nonrestricted fair market value and its restricted
price, and the recapture note shall be secured by a recapture lien
evidenced by a duly recorded mortgage on the unit.
E.
The affordability controls set forth in this article shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
F.
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all code standards upon the first
transfer of title that follows the expiration of the applicable minimum
control period provided under N.J.A.C. 5:80-26.5(a), as may be amended
and supplemented.
Price restrictions for restricted ownership units shall be in
accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
including:
A.
The initial purchase price for a restricted ownership unit shall
be approved by the Administrative Agent.
B.
The Administrative Agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
C.
The method used to determine the condominium association fee amounts
and special assessments shall be indistinguishable between the low-
and moderate-income-unit owners and the market-unit owners.
D.
The owners of restricted-ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of capital improvements. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
A.
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income-ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income, and moderate-income-ownership units shall be reserved for
households with a gross household income less than 80% of median income.
B.
The Administrative Agent shall certify a household as eligible for
a restricted-ownership unit when the household is a low-income household
or a moderate-income household, as applicable to the unit, and the
estimated monthly housing cost for the particular unit (including
principal, interest, taxes, homeowner and private mortgage insurance
and condominium or homeowner association fees, as applicable) does
not exceed 33% of the household's certified monthly income.
A.
Prior to incurring any indebtedness to be secured by a restricted-ownership
unit, the administrative agent shall determine in writing that the
proposed indebtedness complies with the provisions of this section.
B.
With the exception of original purchase money mortgages, during a
control period, neither an owner nor a lender shall at any time cause
or permit the total indebtedness secured by a restricted-ownership
unit to exceed 95% of the maximum allowable resale price of that unit,
as such price is determined by the administrative agent in accordance
with N.J.A.C. 5:80-26.6(b).
A.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this article until the Township of Middletown elects to release
the unit from such requirements pursuant to action taken in compliance
with N.J.A.C. 5:80-26.1, as may be amended and supplemented, and prior
to such an election, a restricted rental unit must remain subject
to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented,
for at least 30 years.
B.
Deeds of all real property that include restricted rental units shall
contain deed-restriction language. The deed restriction shall have
priority over all mortgages on the property, and the deed restriction
shall be filed by the developer or seller with the records office
of the County of Monmouth. A copy of the filed document shall be provided
to the Administrative Agent within 30 days of the receipt of a certificate
of occupancy.
C.
A restricted rental unit shall remain subject to the affordability
controls of this article, despite the occurrence of any of the following
events:
A.
A written lease shall be required for all restricted rental units,
except for units in an assisted-living residence, and tenants shall
be responsible for security deposits and the full amount of the rent
as stated on the lease. A copy of the current lease for each restricted
rental unit shall be provided to the Administrative Agent.
B.
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted-living residence, to
cover the customary charges for food and services) without the express
written approval of the Administrative Agent.
C.
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the Administrative Agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this article.
A.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(1)
Very-low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of median
income.
(2)
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of median income.
(3)
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of median income.
B.
The Administrative Agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(1)
The household currently pays more than 35% (40% for households
eligible for age-restricted units) of its gross household income for
rent, and the proposed rent will reduce its housing costs;
(2)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(3)
The household is currently in substandard or overcrowded living
conditions;
(4)
The household documents the existence of assets with which the
household proposes to supplement the rent payments; or
(5)
The household documents proposed third-party assistance from
an outside source such as a family member in a form acceptable to
the Administrative Agent and the owner of the unit.
A.
The position of Municipal Housing Liaison (MHL) for Township of Middletown
is established by this article. The Middletown Township Committee
shall make the actual appointment of the MHL by means of a resolution.
(1)
The MHL must be either a full-time or part-time employee of
Township of Middletown.
(2)
The person appointed as the MHL must be reported to COAH for
approval.
(3)
The MHL must meet all COAH requirements for qualifications,
including initial and periodic training.
(4)
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Township
of Middletown, including the following responsibilities, which may
not be contracted out to the Administrative Agent:
(a)
Serving as the municipality's primary point of contact for all
inquiries from the state, affordable housing providers, Administrative
Agents and interested households;
(b)
The implementation of the Affirmative Marketing Plan and affordability
controls;
(c)
When applicable, supervising any contracting Administrative
Agent;
(d)
Monitoring the status of all restricted units in the Township
of Middletown's Fair Share Plan;
(e)
Compiling, verifying and submitting annual reports as required
by COAH;
(f)
Coordinating meetings with affordable housing providers and
Administrative Agents, as applicable; and
(g)
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by COAH.
B.
The Township of Middletown shall designate by resolution of the Township
Committee, subject to the approval of COAH, one or more Administrative
Agents to administer newly constructed affordable units in accordance
with N.J.A.C. 5:96, N.J.A.C. 5:97 and UHAC.
C.
An Operating Manual shall be provided by the Administrative Agent(s)
to be adopted by resolution of the governing body and subject to approval
of COAH. The Operating Manuals shall be available for public inspection
in the Office of the Municipal Clerk and in the office(s) of the Administrative
Agent(s).
D.
The Administrative Agent shall perform the duties and responsibilities
of an administrative agent as are set forth in UHAC and which are
described in full detail in the Operating Manual, including those
set forth in N.J.A.C. 5:80-26.14, 16 and 18 thereof, which includes:
(1)
Attending continuing education opportunities on affordability
controls, compliance monitoring, and affirmative marketing as offered
or approved by COAH;
(2)
Affirmative marketing;
(3)
Household certification;
(4)
Affordability controls;
(5)
Records retention;
(6)
Resale and re-rental;
(7)
Processing requests from unit owners;
(8)
Enforcement, though the ultimate responsibility for retaining
controls on the units rests with the municipality; and
(9)
The Administrative Agent shall have authority to take all actions
necessary and appropriate to carry out its responsibilities hereunder.
A.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, municipal fines, a requirement
for household recertification, acceleration of all sums due under
a mortgage, recoupment of any funds from a sale in the violation of
the regulations, injunctive relief to prevent further violation of
the regulations, entry on the premises, and specific performance.
B.
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
(1)
The municipality may file a court action pursuant to N.J.S.A.
2A:58-11 alleging a violation, or violations, of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
found by the court to have violated any provision of the regulations
governing affordable housing units, the owner, developer or tenant
shall be subject to one or more of the following penalties, at the
discretion of the court:
(a)
A fine of not more than $500 or imprisonment for a period not
to exceed 90 days, or both. Each and every day that the violation
continues or exists shall be considered a separate and specific violation
of these provisions and not as a continuing offense;
(b)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Township of Middletown Affordable Housing
Trust Fund of the gross amount of rent illegally collected; and
(c)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation costs,
as determined by the court.
(2)
The municipality may file a court action in the Superior Court
seeking a judgment, which would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any judgment shall be enforceable as if the same were
a judgment of default of the First Purchase Money Mortgage and shall
constitute a lien against the low- and moderate-income unit.
C.
Such judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the low-
and moderate-income unit of the violating owner shall be sold at a
sale price which is not less than the amount necessary to fully satisfy
and pay off any First Purchase Money Mortgage and prior liens and
the costs of the enforcement proceedings incurred by the municipality,
including attorney's fees. The violating owner shall have the right
to possession terminated as well as the title conveyed pursuant to
the Sheriff's sale.
D.
The proceeds of the Sheriff's sale shall first be applied to satisfy
the First Purchase Money Mortgage lien and any prior liens upon the
low- and moderate-income unit. The excess, if any, shall be applied
to reimburse the municipality for any and all costs and expenses incurred
in connection with either the court action resulting in the judgment
of violation or the Sheriff's sale. In the event that the proceeds
from the Sheriff's sale are insufficient to reimburse the municipality
in full as aforesaid, the violating owner shall be personally responsible
for and to the extent of such deficiency, in addition to any and all
costs incurred by the municipality in connection with collecting such
deficiency. In the event that a surplus remains after satisfying all
of the above, such surplus, if any, shall be placed in escrow by the
municipality for the owner and shall be held in such escrow for a
maximum period of two years or until such earlier time as the owner
shall make a claim with the municipality for such. Failure of the
owner to claim such balance within the two-year period shall automatically
result in a forfeiture of such balance to the municipality. Any interest
accrued or earned on such balance, while being held in escrow, shall
belong to and shall be paid to the municipality, whether such balance
shall be paid to the owner or forfeited to the municipality.
E.
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the Sheriff's sale, subject to the restrictions
and provisions of the regulations governing the affordable housing
unit. The owner determined to be in violation of the provisions of
this plan and from whom title and possession were taken by means of
the Sheriff's sale shall not be entitled to any right of redemption.
F.
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the First Purchase Money Mortgage and any
prior liens, the municipality may acquire title to the low- and moderate-income
unit by satisfying the First Purchase Money Mortgage and any prior
liens and crediting the violating owner with an amount equal to the
difference between the First Purchase Money Mortgage and any prior
liens and costs of the enforcement proceedings, including legal fees
and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
G.
Failure of the low- and moderate-income unit to be either sold at
the Sheriff's sale or acquired by the municipality shall obligate
the owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
H.
The owner shall remain fully obligated, responsible and liable for
complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
Appeals from all decisions of an Administrative Agent designated
pursuant to this article shall be filed in writing with the Executive
Director of COAH.
