[Added 10-18-2005 by Ord. No. 3092-05; amended 5-11-2015 by Ord. No.
3367-15; 9-10-2015 by Ord. No. 3375-15]
A.
In order to provide the Borough of Rutherford's fair share of
affordable housing, all developments within the Borough of Rutherford
shall be governed by the following ratio requirements for the provision
of affordable housing:
(1)
Residential development requirements:
(a)
All residential development proposing
the creation of five or more new residential units in any zoning district
shall be required to provide affordable housing at the following ratio:
(b)
If the application of either of the
foregoing results in less than a whole number, then the developer
shall be required to contribute the fractional amount as a development
fee, consistent with the Borough of Rutherford ordinance or as an
additional affordable housing unit. For the purposes of this article,
"residential development" shall include newly constructed market-rate
residential units as well as new market-rate residential units created
from the conversion of a nonresidential building to residential unit(s)
requiring the issuance of a certificate of occupancy.
(2)
Any residential development proposing the creation of less than three
new residential units shall also require the payment of a development
fee, consistent with the Borough of Rutherford's ordinance, said
fee to be contributed to the Affordable Housing Trust Fund.
(3)
Nonresidential development requirements. Nonresidential development
shall require the payment of a development fee, consistent with the
Borough of Rutherford ordinance, said fee to be contributed to the
Affordable Housing Trust Fund.
(4)
Except for inclusionary development constructed pursuant to low-income
tax credit regulations:
(a)
At least half of all affordable units within each inclusionary
development will be affordable to low-income households;
(b)
At least half of all rental units within each inclusionary development
will be affordable to low-income households; and
(c)
At least one-third of all affordable units within each inclusionary
development, constructed with each bedroom distribution in accordance
with N.J.A.C. 5:93-7.3, will be affordable to low-income households.
(5)
Inclusionary developments that are constructed shall be constructed
in accordance with the Fair Share Housing Act and the regulations
duly adopted thereunder and not found invalid by a court of competent
jurisdiction.
B.
Priority for meeting affordable housing requirements.
The priority for providing affordable housing shall be as follows:
(1)
The provision of the required number of affordable
units shall be met and required first through on-site construction,
and on-site construction shall be treated as the highest and best
preference for provision of affordable units. If on-site construction
cannot be accomplished, then the obligation shall be met through the
creation of affordable units elsewhere within the Borough of Rutherford.
(2)
A payment in lieu of construction to the Borough of Rutherford shall only be allowed for satisfaction of a fractional obligation of less than one unit. With approval by the Borough, a builder or developer may round-up a fractional obligation to provide construction in accordance with § 51-59B(1) above.
C.
Specific regulations for construction of affordable
housing within a residential development.
(1)
The design of the building or buildings for affordable
housing units shall resemble as nearly as possible the design for
the market units within the development.
(2)
All required setbacks, building height and coverage
limits for the underlying zone shall be applicable on residential
lots containing affordable housing units, except that, for the purposes
of accommodating walkways and parking for the affordable units, the
maximum impervious lot coverage on any lot containing affordable units
may be increased by up to 15% more than the coverage limit otherwise
allowed on the lot.
(3)
All affordable units shall comply with COAH's rules
pertaining to the phasing of construction, integration, split between
low- and moderate-income units, controls on affordability, bedroom
distribution, affirmative marketing, heating source and administration
of the affordable units, as set forth in N.J.A.C. 5:94 et seq., as
amended, and elsewhere in the COAH rules.
D.
Specific regulations for affordable units within a
nonresidential development and/or mixed-use development.
(1)
Affordable housing units may be constructed within
or converted from space above the first floor level in nonresidential
mixed-use buildings or may be constructed as new space above the first
floor level on the same site as a permitted nonresidential use or
development, subject to site plan review by the Board having jurisdiction.
This shall only be allowable where residential dwellings situated
above the first floor level are permitted as an accessory use pursuant
to the zoning district regulations as set forth in the Zoning Ordinances
of the Borough of Rutherford.[1]
(2)
All required setbacks, building height and coverage
limits for the underlying zone shall be applicable on nonresidential
lots containing affordable housing units, except that, for the purposes
of accommodating walkways and parking for the affordable units, the
maximum impervious lot coverage on any lot containing affordable units
may be increased by up to 15% more than the coverage limit otherwise
allowed on the lot.
(3)
In computing the required parking for any mixed-use
development containing affordable housing units, consideration shall
be given to shared parking opportunities.
(4)
All affordable units shall comply with COAH's rules
pertaining to the phasing of construction, integration, split between
low- and moderate-income units, controls on affordability, bedroom
distribution, affirmative marketing, heating source and administration
of the affordable units, as set forth in N.J.A.C. 5:94 et seq., as
amended, and elsewhere in the rules.
E.
Payments in lieu of construction. Payments in lieu
of the construction of affordable housing shall only be allowable
only to satisfy a fractional obligation of less than one unit. The
cost of construction of one affordable housing unit is deemed to be
$100,000 per unit. The payment in lieu of construction for satisfaction
of a fractional obligation shall be pro rata in accordance with that
cost.
F.
Regulations with respect to prior approvals or agreements.
(1)
Development that has received preliminary or final
approval before the effective date of this article shall not be required
to provide affordable housing as set forth herein unless a substantial
change in the development is sought. If a substantial change to a
prior preliminary or final approval is sought, then the developer
shall be required to comply with this article. For the purpose of
preliminary or final approvals existing before the effective date
of this article, a "substantial change" to such an approval is defined
as follows:
(a)
Five feet of improvements into any yard setback.
(b)
Seven feet in building height.
(c)
One percent in floor area ratio.
(d)
One percent in impervious coverage.
(e)
Five feet in building spacing or location.
(f)
Three parking spaces.
(g)
Five feet in driveway locations.
(h)
One percent in site disturbances.
(i)
Five feet in lot line locations.
(j)
Any change in residential density.
(k)
Any change in use that encompasses more than
one percent of the approved building floor area.
(l)
Any new variances pursuant to N.J.S.A. 40-55D-7c
or d.
(m)
Any such change enumerated above shall not alter
the percentage of low- or moderate-income housing in an approved project,
if applicable.
(2)
When a prior approval exists, this article shall be
applicable as a condition of approval under the following additional
circumstances:
(3)
This article shall not change any existing and approved
developer's agreement between a developer and the Borough of Rutherford
so long as the agreement contains a negotiated and approved requirement
for meeting COAH obligations generated by the development.
G.
Other regulations.
(1)
Every development applicant shall be required to submit
a proposed affordable housing production plan (AHPP) at the time the
application is made. The AHPP shall be a condition of the completeness
determination. Each AHPP shall be the subject of review for consistency
with COAH's rules, the Fair Housing Act, this article, and the Borough's
Housing Element and Fair Share Plan as proposed and/or approved by
COAH, and such other rules and regulations as may be applicable. This
review shall be conducted by the Borough Planner or by such other
person or entity as shall be designated to administer the Borough's
COAH matters.
(2)
The AHPP shall be approved by the board hearing the
development application. The board shall consider the Borough-wide
impacts of providing affordable housing, as well as the impacts upon
the Borough's Housing Element and Fair Share Plan as proposed and/or
approved by COAH.
(3)
Compliance with COAH's rules and with the approved
AHPP shall be a condition of the board's resolution of approval and
may be covered by appropriate performance and maintenance guarantees
as with any other required improvement.
(4)
The board hearing a development application shall
ensure that this article is applied to every development within the
Borough of Rutherford. The board shall require that the applicant
or successor in interest shall comply with the terms of this article.
The manner and method of compliance with the article shall be set
forth in the board's resolution of approval or shall be set forth
in a written developer's agreement between the applicant and the Borough
of Rutherford, which developer's agreement must be approved and executed
before any building permit is issued.
(5)
It shall be the developer's responsibility, at its
sole cost and expense, to contract with a COAH-approved and Borough-designated
experienced entity for the initial and ongoing administration of the
controls on affordability so as to ensure full COAH compliance. The
designated administrative entity shall, by February 1 of each year,
and as needed throughout the year, file with the Borough Clerk of
the Borough of Rutherford such certifications, reports and/or monitoring
forms as maybe required by COAH to verify the continuing compliance
of each affordable unit with COAH's rules.
(6)
Developments covered by this article shall be exempt
from the payment of development fees pursuant to any development fee
ordinance adopted by the Borough.
A.
Purpose. As affirmed by the New Jersey Supreme Court in Holmdel Builder's
Association v. Holmdel Township 121 N.J. 550 (1990), the purpose of
the mandatory development fee is to provide funding for the Borough's
Housing Element and Fair Share Plan approved by the governing body
of the Borough of Rutherford.
B.
AFFORDABLE
AFFORDABLE HOUSING DEVELOPMENT
COUNCIL/COAH
DEVELOPER
DEVELOPMENT FEES
EQUALIZED ASSESSED VALUE
INCLUSIONARY DEVELOPMENT
SUBSTANTIVE CERTIFICATION
Definitions. As used in this section, the following words are intended
to have the same meaning as given to them by the New Jersey Supreme
Court in the Mount Laurel II decision and as clarified or otherwise
modified by subsequent decisions, if any, by a court of competent
jurisdiction, or by the New Jersey Council on Affordable Housing,
if applicable.
A sales price or rent within the means of a low- or moderate-income
household as defined by state law.
A development included in the municipality's Housing
Element and Fair Share Plan, and includes, but is not limited to,
an inclusionary development, a municipal construction project or a
one-hundred-percent affordable development.
The New Jersey Council on Affordable Housing.
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.
Money paid by a developer for the improvement of property
as permitted by law.
The assessed value of a property divided by the current equalization
ratio for the municipality. Estimates at the time of building permit
may be obtained by the tax assessor utilizing estimates for construction
cost. Final equalized assessed value shall be determined at project
completion by the municipal tax assessor.
A residential development containing housing units designed
for low- and moderate-income households as well as 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 determination by the Council or a court of competent jurisdiction
approving a municipality's Housing Element and Fair Share Plan
in accordance with the provisions of the Fair Housing Act and COAH
regulations, if applicable.
C.
Residential development fees.
(1)
Except as otherwise provided in Subsection E below, all residential developers shall pay a mandatory development fee equal to 1.5% of the equalized assessed value for each residential unit constructed, provided that no increased density (above what is permitted as of right by the existing zoning) is permitted. This mandatory fee shall be calculated as follows: 0.015 x equalized assessed value x number of units.
(2)
If a "d" variance is granted by the Borough of Rutherford Zoning
Board of Adjustment, pursuant to N.J.S.A. 40:55D-70(d)(5), permitting
an increase in residential density, then the additional residential
units realized (above what is permitted as of right by the existing
zoning) will incur a bonus development fee of 6% rather than a development
fee of 1.5%. However, if the zoning on a site has changed during the
last two-year period preceding the filing of the "d" variance application,
the base density for the purposes of calculating the bonus development
fee shall be the highest density permitted by right during the two
years preceding the filing of the "d" variance application.
D.
Nonresidential development fees.
(1)
Within all zoning districts, a mandatory development fee shall be paid as provided in this Subsection D.
(2)
For nonresidential development involving new construction on unimproved
lot or lots, the fee shall be based on the equalized assessed value
of the land and improvements. If an existing structure is demolished
and replaced, the development fee of 2.5% shall be calculated on the
difference between the equalized assessed value of the land and preexisting
improvements thereon and the equalized value of the newly constructed
structure and the land. Such calculation being made at the time the
final certificate of occupancy is issued. If the calculation required
under this section results in a negative number, the nonresidential
development fee shall be zero.
(3)
For nonresidential development involving additions or alterations
to an existing structure, the development fee of 2.5% shall be calculated
based on the increase in equalized assessed value that results from
the addition or alteration.
(4)
If a "d" variance is granted by the Borough of Rutherford Zoning
Board of Adjustment, permitting an increase in floor area pursuant
to N.J.S.A. 40:55D-70(d)(4), then the developer will incur a bonus
development fee of 6% rather than 2.5%. However, if the zoning on
the site has changed during the two-year period preceding the filing
of such a variance application, the base floor area for the purposes
of calculating the bonus development fee shall be the highest floor
area permitted by right during the two-year period preceding the filing
of the variance application.
E.
Exemptions, eligible exactions and ineligible exactions.
(1)
Inclusionary developments, as defined herein, are developments where
the developer is providing for the construction of affordable housing
units elsewhere within the Borough, and developments where the developer
has made a payment in lieu of constructing affordable housing units
are exempt from development fees.
(2)
Developments that have received preliminary or final approval, prior
to the effective date of this section, are exempt from development
fees during the effective period of said approval, unless the developer
seeks a substantial change in the approvals granted.
(3)
Owner-occupied residential structures that are being altered or reconstructed
as a result of damage occurring from fire, flood or natural disaster
shall be exempt from paying development fees.
(4)
All development by nonprofit organizations shall be exempt from development
fees.
(5)
Development otherwise exempted by applicable state law.
F.
Timing of payments.
(1)
Fifty percent of the total mandatory development fee owed to the
Borough of Rutherford, whether for residential or nonresidential development,
shall be paid prior to the issuance of any building permit required
in connection with the development.
(2)
For nonresidential developments: 50% payment required prior to the
issuance of any building permit.
(3)
The remaining portion of the development fee shall be paid prior
to the issuance of any certificate of occupancy for any development
or any part thereof, whether residential or nonresidential, and shall
be calculated using the actual assessed valuation of the development
as determined by the Borough's Tax Assessor.
(4)
Because the initial payment required prior to the issuance of a building
permit is calculated using an estimated assessed valuation based on
estimates for construction costs, the developer's certificate
of occupancy payment shall be equal to the difference between the
actual assessed valuation and the initial payment required prior to
the issuance of any building permit.
G.
Appeal of development fees.
(1)
A developer may challenge residential development fees imposed by
filing a challenge with the Bergen County Board of Taxation. Pending
a review and determination by the Board, collected fees shall be placed
in an interest-bearing escrow account by the Borough of Rutherford.
Appeals from a determination of the Board may be made to the tax court
in accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 calendar days after the date
of such determination. Interest earned on amounts escrowed shall be
credited to the prevailing party.
(2)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the State of New Jersey
Division of Taxation. Pending a review and determination by the Director,
which shall be made within 45 calendar days of the receipt of the
challenge, collected fees shall be placed in an interest-bearing escrow
account by the Borough of Rutherford. Appeals from a determination
of the Director may be made to the tax court in accordance with the
provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1
et seq., within 90 calendar days after the date of such determination.
Interest earned on amounts escrowed shall be credited to the prevailing
party.
H.
Affordable Housing Trust Fund.
(1)
All mandatory development fees collected pursuant to this section
shall be deposited in an interest-bearing escrow account entitled
"Affordable Housing Trust Fund: Mandatory Fee Account."
(2)
The Affordable Housing Trust Fund: Mandatory Fee Account shall be
maintained by the Borough of Rutherford's Chief Financial Officer.
The Borough of Rutherford Administrator is hereby authorized and designated
as the official responsible for filing and ensuring reporting compliance
with the maintenance of this fund.
(3)
The following additional funds shall also be deposited in the Affordable
Housing Trust Fund and shall, at all times, be identifiable by source,
amount and date of deposit:
(a)
Payments in lieu of on-site construction of affordable housing
units;
(b)
Developer-contributed funds to make 10% of the adaptable entrances
in townhouse or other multistory attached development accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable housing units; and
(g)
Any other funds collected in connection with the Borough of
Rutherford's affordable housing program.
I.
Use of funds.
(1)
Money deposited into the Affordable Housing Trust Fund may be used
for any activity approved by COAH or the court, as applicable, for
addressing the Borough's low- and moderate-income housing obligation.
Such activities may include, but are not necessarily limited to, housing
rehabilitation; new construction; regional contribution agreements;
the purchase of land for low- and moderate-income housing; extensions
and/or improvements of roads and infrastructures to low- and moderate-income
housing sites; assistance designed to render units to be more affordable
to low- and moderate-income people; and administrative costs necessary
to implement the Borough of Rutherford's Housing Element. The
expenditure of all monies shall conform to the approved spending plan.
(2)
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the Borough's Fair
Share Plan. One third (33%) of the affordability assistance portion
of development fees collected shall be used to provide affordability
assistance to those households earning 30% or less than median income
by region.
(3)
The Borough of Rutherford may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including the requirement for affordability assistance, in accordance
with N.J.A.C. 5:96-18. In addition, the Borough of Rutherford may
enter into a partnership with a public or nonprofit third party for
the development of supportive and/or special needs housing serving
developmentally disabled (or physically disabled) persons.
(4)
No more than 20% of all revenues collected from development fees
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or consultant fees necessary
to develop or implement a new construction program, a Housing Element
and Fair Share Plan, and/or affirmative marketing program. In the
case of a rehabilitation program, no more than 20% of the revenues
collected from development fees shall be expended for such administrative
expenses. Administrative funds may be used for income qualification
of households, monitoring the turnover of sale and rental units, and
compliance with COAH's or the court's monitoring requirements.
Legal or other fees related to litigation opposing affordable housing
units are not eligible uses of the Affordable Housing Trust Fund.
J.
Spending plan.
(1)
Within three years from the date of the adoption of this section,
the Borough of Rutherford shall review all monies collected within
the Affordable Housing Trust Fund and shall devise an initial spending
plan for said monies, in accordance with N.J.A.C. 5:97-8.10.
(2)
Once developed, the Borough of Rutherford's spending plan shall
be submitted to COAH's review and approval, if applicable, pursuant
to N.J.A.C. 5:96-5.3, or submitted for court approval via a declaratory
judgment action.
(3)
Following the initial spending plan development and approval, the
Borough of Rutherford shall develop and submit a spending plan for
each three-year period thereafter, so as to prevent loss of funds
pursuant to the Fair Housing Act, N.J.S.A. 52:270-329.2 and 52:270-329.3.
K.
Monitoring. The Borough of Rutherford shall complete and return to
COAH, if applicable, or the court or the court's designee, all
monitoring requirements related to 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 Rutherford's housing
program, as well as to the expenditure of revenues and implementation
of the plan as certified by COAH and/or approved by the court. All
monitoring reports shall be completed on forms designed by COAH and/or
the court.
