[HISTORY: Adopted by the Mayor and Council of the Borough
of Somerdale as indicated in article histories. Amendments noted where
applicable.]
GENERAL REFERENCES
Rent stabilization — See Ch.
206.
[Adopted 8-13-2015 by Ord. No. 2015:07[1]]
[1]
Editor's Note: This ordinance was originally adopted as Ch.
280 but was renumbered to maintain the organization of the Code.
A.
Chapter 63, Art. I, entitled "Affordable Housing" of the general ordinances/zoning ordinances of Somerdale Borough is hereby created to address Somerdale's constitutional obligation to provide for its fair share of low- and moderate-income housing, consistent with the provisions of N.J.A.C. 5:97 et seq. and N.J.A.C. 5:80-26.1 and pursuant to the New Jersey Fair Housing Act of 1985. This article is also intended to provide assurances that low- and moderate-income units (the "affordable units") are created with controls on affordability over time and that low- and moderate-income people occupy these units. This article shall apply except where inconsistent with applicable law.
B.
The Somerdale Borough Planning Board adopted the Housing Element
pursuant to the MLUL at N.J.S.A. 40:55D-1 et seq. on November 26,
2008. A Fair Share Plan consistent with this Housing Element was adopted
by the Planning Board on November 26, 2008, and endorsed by the governing
body on December 11, 2008. This Fair Share Plan describes the methods
by which Somerdale Borough will address its fair share obligation
as determined by the Housing Element. This article implements and
incorporates that Fair Share Plan and addresses the requirements of
N.J.A.C. 5:97 et seq. Somerdale will annually file a monitoring report
with the Council delineating the status of its certified plan and
this report will be available to the public at the office of the Clerk,
105 Kennedy Boulevard, Somerdale, and from the Council on Affordable
Housing at PO Box 813, Trenton, New Jersey 08625-0813.
The fair share obligation in Somerdale consists of a sixteen-unit
rehabilitation obligation, an adjusted ninty-five-unit prior round
obligation and a forty-eight-unit growth share obligation that represents
one affordable unit for every four market rate residential units receiving
a certificate of occupancy subsequent to January 1, 2004, plus one
affordable housing unit for every 16 jobs created through the expansion
or creation of nonresidential development in accordance with the schedule
determined by the New Jersey Council on Affordable Housing (COAH).
As used in this article, the following terms shall have the
meanings indicated:
A restricted ownership unit that is part of a housing element
that received substantive certification from COAH pursuant to N.J.A.C.
5:93 before October 1, 2001.
The entity responsible for administering the affordability
controls of this article with respect to specific restricted units,
as designated pursuant to N.J.A.C. 5:80-26.14.
An average of the percentage of median income at which restricted
units in an affordable development are affordable to low- and moderate-income
households.
In the case of an ownership unit, the sales price for the
unit conforms to the standards set forth in N.J.A.C. 5:80-26.6 and,
in the case of a rental unit, the rent for the unit conforms to the
standards set forth in N.J.A.C. 5:80-26.12.
A housing development all or a portion of which consists
of restricted units.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
where the head of the household is a minimum age of either 62 years,
or 55 years and meets the provisions of the 42 U.S.C. § 3601
et seq., except that due to death, a remaining spouse of less than
55 years of age shall be permitted to continue to reside.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.), and in, but not
of, the DCA.
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 offer, at a minimum, one unfurnished room, a private bathroom,
a kitchenette and a lockable door on the unit entrance.
The Neighborhood Preservation Balanced Housing Program of
the DCA as set forth at N.J.S.A. 52:27D-320 and N.J.A.C. 5:43.
A household that has been certified by an administrative
agent as a low-income household or moderate-income household.
The Council on Affordable Housing in, but not of, the DCA,
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.
Any one of three periods in time during which the Council
established municipal obligations to provide affordable housing and
the first round was from 1987-1993 and the second period was from
1993-1999 and the third is for 2000-2018.
The Housing Affordability Service, formerly known as the
"Affordable Housing Management Service," at the New Jersey Housing
and Mortgage Finance Agency.
A household with a total gross annual household income equal
to 50% or less of the median income.
A restricted unit that is affordable to a low-income household.
The median income by household size for an 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 income.
A restricted unit that is affordable to a moderate-income
household.
The Agency's Market Oriented Neighborhood Investment
Program, as it may be authorized from time to time by the Agency.
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 affordable to a four-person household
with an income at or above 80% of the regional median as defined by
the Council's annually adopted income limits.
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,
but does not include a market-rate unit financed under UHORP or MONI.
The Agency's Urban Homeownership Recovery Program.
A.
Somerdale has determined that it will use the following programs
to satisfy its affordable housing obligation: rehabilitation and one-hundred-percent
affordable municipally sponsored family rental housing.
B.
The following general guidelines apply to all developments that contain
low- and moderate-income units, and any future developments that may
occur.
The rehabilitation program.
A.
Somerdale's rehabilitation program is designed to renovate deficient
housing units occupied by low- and moderate-income households and,
after rehabilitation, these units will comply with the New Jersey
State Housing Code pursuant to N.J.A.C. 5:28.
B.
Somerdale has designated the Camden County Home Improvement Program
as the administrator of the rehabilitation program.
C.
Both renter-occupied and owner-occupied units are eligible for rehabilitation
funds.
D.
Both renter-occupied and owner-occupied units must remain affordable
to low- and moderate-income households for a period of 10 years. For
owner-occupied units this control period will be enforced with a lien
and for renter-occupied units the control period will be enforced
with a deed restriction.
E.
If necessary, Somerdale will dedicate a minimum of $10,000 for units
rehabilitated through this program.
F.
Camden County has created a rehabilitation manual for this rehabilitation
program, which is available for inspection at the Clerk's office,
105 Kennedy Boulevard, Somerdale.
In inclusionary zones, the following schedule shall be followed:
|
Percentage of Market-Rate Units Completed
|
Minimum Percentage of Low- and Moderate-Income Units Completed
|
|---|---|
|
25
|
0
|
|
25+1
|
10
|
|
50
|
50
|
|
75
|
75
|
|
90
|
100
|
A.
Low/mod split and bedroom distribution of affordable housing units:
(1)
The fair share obligation shall be divided equally between low- and
moderate-income households.
(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 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 may be allocated at the discretion of the developer.
(e)
Age-restricted low- and moderate-income units may utilize a
modified bedroom distribution and, at a minimum, the number of bedrooms
shall equal the number of age-restricted low- and moderate-income
units within the affordable development.
B.
Accessible townhouse units.
(1)
The first floor of all townhouse dwelling units and of all other
multistory dwelling units for which credit is sought pursuant to P.L.
1985, c. 222 (N.J.S.A. 52:27D-301 et seq.), on or after October 1,
2006, the effective date of P.L. 2005, c. 350 (N.J.S.A. 52:27D-311a
et seq.), and for which an application for a construction permit has
not been declared complete by the enforcing agency pursuant to P.L.
2005, c. 350 (N.J.S.A. 52:27D-311a et seq.), and which were included
in a prior round fair share plan or in a third round fair share plan
and for which credit continues to be sought shall be subject to the
technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
(2)
To receive Council credit for a townhouse unit or other multistory
dwelling unit that is attached to at least one other dwelling unit
Somerdale shall ensure that:
(a)
Townhouses or other multistory dwelling units that are attached
to at least one other dwelling unit for which credit is sought for
low- or moderate-income housing shall have the following features:
[1]
An adaptable toilet and bathing facility on the first floor;
[2]
An adaptable kitchen on the first floor;
[3]
An accessible route of travel;
[a]
An interior accessible route of travel shall not be required
between stories;
[4]
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
and
[5]
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.), and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that Somerdale has collected funds from the development
sufficient to make 10% of the adaptable entrances in the development
accessible.
(b)
In the case of a unit or units which are 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;
(3)
The builder of the unit or units shall deposit funds, sufficient
to adapt 10% of the affordable units in the projects which have not
been constructed with accessible entrances, with Somerdale, for deposit
into the municipal affordable housing trust fund;
(4)
The funds under Subsection B(3) above shall be available for the use of Somerdale for the 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;
(5)
The developer of the affordable project subject to P.L. 2005, c.
350 (N.J.S.A. 52:27D-311a et seq.), shall submit the design with a
cost estimate for conversion to Somerdale; and
(6)
Once Somerdale has determined that the plans to adapt the entrances
of the townhouse or other multistory unit meet the requirements of
the Barrier Free Subcode, N.J.A.C. 5:23-7, the Chief Financial Officer
shall ensure that the funds are deposited into that fund.
(7)
Full compliance with this section 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.
C.
Maximum rents and sales prices.
(1)
Somerdale hereby establishes that 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.
(2)
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.
(3)
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
and 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.
(4)
At least 13% of the affordable housing in Somerdale must be affordable
to households at 30% of median income.
A.
Affordable units shall utilize the same type of heating source as
market units within the affordable development.
B.
Those 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.
Occupancy standards for affordable housing units are pursuant
to N.J.A.C. 5:80-26.4:
A.
In determining the initial rents and initial sales prices for compliance
with the affordability average requirements for restricted units other
than assisted living facilities, the following standards shall be
used:
(1)
A studio shall be affordable to a one-person household;
(2)
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
(3)
A two-bedroom unit shall be affordable to a three-person household;
(4)
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
(5)
A four-bedroom unit shall be affordable to a six-person household.
B.
For assisted living facilities, the following standards shall be
used:
C.
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:
Control periods for ownership units are pursuant to N.J.A.C.
5:80-26.5 and each restricted ownership unit shall remain subject
to the requirements of this article until Somerdale Borough elects
to release the unit from such requirements pursuant to action taken
in compliance with N.J.A.C. 5:80-26.1 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 for at least 30 years.
A.
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.
B.
All conveyances of restricted ownership units shall be made by deeds
and restrictive covenants pursuant to N.J.A.C. 5:80-26.1 and each
purchaser of a 95/5 unit, in addition, shall execute a note and mortgage,
incorporated herein by reference.
C.
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.
D.
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the municipal
building inspector 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).
Price restrictions for ownership units are pursuant to N.J.A.C.
5:80-26.1, including:
A.
The initial purchase price for a restricted ownership unit shall
be approved by the administrative agent. The initial purchase price
for all restricted ownership units shall be calculated so that the
monthly carrying costs 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 an appropriate household
size as determined under N.J.A.C. 5:80-26.4; provided, however, that
the price shall be subject to the affordability average requirement
of N.J.A.C. 5:80-26.3.
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 master deeds of affordable developments shall provide no distinction
between the condominium or homeowner association fees and special
assessments paid by low- and moderate-income purchasers and those
paid by market purchasers, although condominium units subject to a
municipal ordinance adopted before October 1, 2001, which provides
for condominium or homeowner association fees and/or assessments different
from those provided for in this subsection shall have such fees and
assessments governed by said ordinance.
D.
The owners of 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 that adds an additional
bathroom.
A.
Buyer income eligibility for ownership units is pursuant to N.J.A.C.
5:80-26.1, 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 unit (including principal,
interest, taxes, homeowner and private mortgage insurance and condominium
or homeowner association fees as applicable) does not exceed 33% of
the household's eligible monthly income.
Each restricted rental unit shall remain subject to the requirements
of this article until Somerdale elects to release the unit from such
requirements, however, prior to such a municipal election, a restricted
rental unit must remain subject to the requirements of this article
for a period of at least 30 years.
A.
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 and a copy of the filed document shall be provided to
the administrative agent within 30 days of the receipt of a certificate
of occupancy.
B.
A restricted rental unit shall remain subject to the affordability
controls of this article, despite the occurrence of any of the following
events:
The initial rent for a restricted rental unit shall be approved
by the administrative agent and 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; provided, however, that the
rent shall be subject to the affordability average requirement of
N.J.A.C. 5:80-26.3.
A.
Rents may be increased annually based on the Housing Consumer Price
Index for the United States, as published annually by COAH. Rents
may not be increased more than once a year.
B.
A written lease is required for all restricted rental units, except
for units in an assisted living residence, and tenants are responsible
for security deposits and the full amount of the rent as stated on
the lease.
C.
No additional fees or charges may be added to the approved rent (except,
in the case of units in an assisted living residence, for the customary
charges for food and services) without the express written approval
of the administrative agent and application fees (including the charge
for any credit check) may not exceed 5% of the monthly rental of the
applicable restricted unit and shall be payable to the administrative
agent to be applied to the costs of administering the controls in
this article as applicable to the unit.
Pursuant to N.J.A.C. 5:80-26.13, tenant income eligibility shall
be determined as follows:
A.
Low-income rental units shall be reserved for households with a gross
household income less than or equal to 50% of median income. Moderate-income
rental units shall be reserved for households with a gross household
income less than 80% of median income. Very-low-income rental units
shall be reserved for households with a gross household income less
than or equal to 30% of median income.
B.
The administrative agent shall certify a household as eligible for
a restricted rental unit when the household is a 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; 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.
COAH requires Somerdale to appoint a specific municipal employee
to serve as a Municipal Housing Liaison responsible for administering
its affordable housing program, including affordability controls and
the Affirmative Marketing Plan, and, where applicable, supervising
any contracting administrative agent. Somerdale adopted an ordinance
on September 7, 2006, creating the position of Municipal Housing Liaison.
Somerdale adopted a resolution on September 4, 2008, appointing a
Municipal Housing Liaison. Subject to the approval of COAH, the Municipal
Housing Liaison shall be appointed by the governing body and may be
a full- or part-time municipal employee.
B.
The Municipal Housing Liaison shall be responsible for oversight and administration of the affordable housing program for Somerdale, including the following responsibilities which may not be contracted out, exclusive of Subsection B(6) which may be contracted out:
(1)
Serving as Somerdale's primary point of contact for all inquiries
from the state, affordable housing providers, administrative agents,
and interested households;
(2)
Monitoring the status of all restricted units in Somerdale's
Fair Share Plan;
(3)
Compiling, verifying, and submitting annual reports as required by
COAH;
(4)
Coordinating meetings with affordable housing providers and administrative
agents, as applicable;
(5)
Attending continuing education opportunities on affordability controls,
compliance monitoring, and affirmative marketing as offered or approved
by COAH;
C.
Subject to approval by COAH, Somerdale may contract with or authorize
a consultant, authority, government or any agency charged by the governing
body, which entity shall have the responsibility of administering
the affordable housing program of Somerdale, except for those responsibilities
which may not be contracted out as described above. If Somerdale contracts
with another entity to administer all or any part of the affordable
housing program, including the affordability controls and Affirmative
Marketing Plan, the Municipal Housing Liaison shall supervise the
contracting administrative agent.
D.
The Municipal Housing Liaison is responsible for providing annual
reports to COAH.
The affordability controls set forth in this article shall be
administered and enforced by the administrative agent. The primary
responsibility of the administrative agent shall be to ensure that
the restricted units under administration are sold or rented, as applicable,
only to low- and moderate-income households. Somerdale adopted a resolution
on September 7, 2006, authorizing entering into a contract with Community
Investment Strategies (CIS) for the administration of affordable units
in its fair share plan.
A.
The administrative agent shall create and shall publish in plain
English, and in such other languages as may be appropriate to serving
its client base, a written operating manual, as approved by COAH,
setting forth procedures for administering such affordability controls,
including procedures for long-term control of restricted units; for
enforcing the covenants of N.J.A.C. 5:80-26.18 and for releasing restricted
units promptly at the conclusion of applicable control periods. The
administrative agent shall have authority to take all actions necessary
and appropriate to carrying out its responsibilities hereunder. The
operating manual shall have a separate and distinct chapter or section
setting forth the process for identifying applicant households seeking
certification to restricted units, for reviewing applicant household
eligibility, and for certifying applicant households in accordance
with the household certification and referral requirements set forth
in N.J.A.C. 5:80-26.16.
B.
The administrative agent shall establish and maintain a ready database
of applicant households as a referral source for certifications to
restricted units, and shall establish written procedures to ensure
that selection among applicant households be via the database, and
in accordance with a uniformly applied random selection process and
all applicable state and federal laws relating to the confidentiality
of applicant records.
C.
The municipality in which restricted units are located shall select
one or more administrative agents for those units. A municipality
itself (through a designated municipal employee, department, board,
agency or committee) may elect to serve as the administrative agent
for some or all restricted units in the municipality, or the municipality
may select HAS or an experienced private entity approved by the Division,
the Agency or COAH to serve as administrative agent for some or all
restricted units in the municipality. The foregoing approval by COAH
or the Division is to be based on the private entity's demonstration
of the ability to provide a continuing administrative responsibility
for the length of the control period for the restricted units.
D.
The administrative agent shall have the authority to discharge and
release any or all instruments, as set forth in the appendices of
this article, filed of record to establish affordability controls.
A.
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 period of deed restriction.
B.
Somerdale Borough will have a regional preference for residents and
workers in Region 5 in its Affirmative Marketing Plan.
(1)
The administrative agent shall assure the affirmative marketing of
affordable units.
(2)
If the municipality does not designate a municipal staff person,
it shall contract with other experienced administrative agents approved
by COAH to administer the affirmative marketing plan. Where a municipality
contracts with another administrative agent to administer the affirmative
marketing plan, the municipality shall appoint a municipal housing
liaison who shall supervise the contracting administrative agent.
In addition, where the contracting administrative agent is not responsible
for the entire affirmative marketing plan, the municipality shall
outline who or what municipal agent is responsible for the remaining
portion of the affirmative marketing plan. The municipality has the
ultimate responsibility for the proper administration of the affirmative
marketing program, including initial sales and rentals and resales
and rerentals.
(3)
In implementing the affirmative marketing plan, administrative agents
shall designate an experienced staff person approved by COAH to provide
counseling services to low- and moderate-income applicants on subjects
such as budgeting, credit issues, mortgage qualification, rental lease
requirements, and landlord/tenant law.
(4)
The affirmative marketing plan shall describe the media to be used
in advertising and publicizing the availability of housing. In developing
the plan, the administrative agent shall consider the use of language
translations.
(5)
The affirmative marketing process for available affordable units
shall begin at least four months prior to expected occupancy.
(6)
Applications for affordable housing shall be available in several
locations, including, at a minimum, the county administrative building
and/or the county library for each county within the housing region;
the municipal administrative building(s) and the municipal library
in the municipality in which the units are located; and the developer's
sales office. Applications shall be mailed to prospective applicants
upon request.
(7)
COAH shall review and assess the effectiveness of Somerdale's
affirmative marketing program.
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 and has executed a certificate.
A.
The sources of income considered by the administrative agent shall
be the types of regular income reported to the Internal Revenue Service
and which can be used for mortgage loan approval.
B.
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, a certificate of eligibility shall be denied unless
the applicant's existing monthly housing costs exceed 38% of
the household's eligible monthly income.
C.
The administrative agent shall employ a random selection process
when referring households for certification to affordable units.
A.
By submitting to the jurisdiction of COAH, a municipality shall be
deemed to have delegated to its administrative agent the day-to-day
responsibility for implementing practices and procedures designed
to ensure effective compliance with the controls set forth in this
article. The municipality, however, shall retain the ultimate responsibility
for ensuring effective compliance with this article.
B.
Administrative agent practices and procedures shall include, but
shall not necessarily be limited to, the following:
(1)
Securing from all developers and sponsors of restricted units, at
the earliest point of contact in the processing of the project or
development, written acknowledgement of the requirement that no restricted
unit can be offered, or in any other way committed, to any person,
other than a household duly certified to the unit by the administrative
agent.
(2)
Requiring that all certified applicants for restricted units execute
a certificate substantially in the form, as applicable, of either
the ownership or rental certificates.
(3)
The posting annually in all rental properties, including two-family
homes, of a notice as to the maximum permitted rent together with
the telephone number of the administrative agent where complaints
of excess rent can be made.
(4)
If the unit is owner-occupied, that the unit may be resold only to
a household that has been approved in advance and in writing by the
administrative agent.
(5)
That no sale of the unit shall be lawful, unless approved in advance
and in writing by the administrative agent, and that no sale shall
be for a consideration greater than regulated maximum permitted resale
price, as determined by the administrative agent.
(6)
That no refinancing, equity loan, secured letter of credit, or any
other mortgage obligation or other debt secured by the unit may be
incurred except as approved in advance and in writing by the administrative
agent, and that at no time will the administrative agent approve any
debt, if incurring the debt would make the total of all such debt
exceed 95% of the then applicable maximum permitted resale price.
(7)
That the owner of the unit shall at all times maintain the unit as
his or her principal place of residence, which shall be defined as
residing at the unit at least 260 days out of each calendar year.
(8)
That, except as set forth in N.J.A.C. 5:80-26.18(c)4vii, at no time
shall the owner of the unit lease or rent the unit to any person or
persons, except on a short-term hardship basis, as approved in advance
and in writing by the administrative agent.
(9)
That the maximum permitted rent chargeable to affordable tenants
is as stated in the notice required to be posted in accordance with
N.J.A.C. 5:80-26.18(d)3 of this article, a copy of which shall be
enclosed, and that copies of all leases for affordable rental units
must be submitted annually to the administrative agent.
(10)
Banks and other lending institutions are prohibited from issuing
any loan secured by owner-occupied real property subject to the affordability
controls set forth in this article, if such loan would be in excess
of amounts permitted by the restriction documents recorded in the
deed or mortgage book in the county in which the property is located.
Appeals from all decisions of an administrative agent appointed
pursuant to this article shall be filed in writing with the Executive
Director of COAH.
[Adopted 8-13-2015 by Ord. No. 2015:08]
A.
In Holmdel Builder's Association v. Holmdel Township, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985 (the
Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject
to the Council on Affordable Housing's (COAH's) adoption
of rules.
B.
Pursuant to P.L. 2008, c. 46, § 8 (N.J.S.A. 52:27D-329.2),
and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 40:55D-8.7), COAH is authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that are under the jurisdiction of
the Council or court of competent jurisdiction and have a COAH-approved
spending plan may retain fees collected from nonresidential development.
C.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance P.L. 2008, c. 46, §§ 8 and 32 to
38. Fees collected pursuant to this article shall be used for the
sole purpose of providing low- and moderate-income housing. This article
shall be interpreted within the framework of COAH's rules on
development fees, codified at N.J.A.C. 5:97-8.
The following terms, as used in this article, shall have the
following meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a one-hundred-percent affordable
development.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
A.
Imposed fees.
(1)
Residential developers of two or more units per lot and condominium
units, except for developers of the types of development specifically
exempted below, shall pay a fee of 1 1/2% of the equalized assessed
value for residential development provided no increased density is
permitted.
(2)
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5)
(known as a "d" variance) has been permitted, developers may be required
to pay a development fee of 6% of the equalized assessed value for
each additional unit that may be realized. However, if the zoning
on a site has changed during the two-year period preceding the filing
of such a variance application, the base density for the purposes
of calculating the bonus development fee shall be the highest density
permitted by right during the two-year period preceding the filing
of the variance application.
(3)
Example: If an approval allows four units to be constructed on a
site that was zoned for two units, the fees could equal 1% of the
equalized assessed value on the first two units; and the specified
higher percentage up to 6% of the equalized assessed value for the
two additional units, provided zoning on the site has not changed
during the two-year period preceding the filing of such a variance
application.
B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
Affordable housing developments and developments where the developer
has made a payment in lieu of on-site construction of affordable units
shall be exempt from development fees.
(2)
Developments that have received preliminary or final site plan approval
prior to the adoption of a municipal development fee ordinance shall
be exempt from development fees, unless the developer seeks a substantial
change in the approval. Where a site plan approval does not apply,
a zoning and/or building permit shall be synonymous with preliminary
or final site plan approval for this purpose. The fee percentage shall
be vested on the date that the building permit is issued.
(3)
Development fees shall not be imposed and collected when an existing
structure undergoes a change to a more intense use or is expanded.
(4)
Developers of single-family residential development, fee simple townhouses
and residential structures demolished and replaced as a result of
a natural disaster shall be exempt from paying a development fee.
(5)
Within redevelopment zones, residential developers shall be exempt
from paying a development fee.
A.
Imposed fees.
(1)
Within all zoning districts, nonresidential developers, except for
developers of the types of development specifically exempted, shall
pay a fee equal to 2.5% of the equalized assessed value of the land
and improvements, for all new nonresidential construction on an unimproved
lot or lots.
(2)
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to 2.5%
of the increase in equalized assessed value resulting from any additions
to existing structures to be used for nonresidential purposes.
(3)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and improvement and the equalized assessed
value of the newly improved structure, i.e., land and improvement,
at the time final certificate of occupancy is issued. If the calculation
required under this section results in a negative number, the nonresidential
development fee shall be zero.
B.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(1)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the two-and-a-half-percent development
fee, unless otherwise exempted below.
(2)
The two-and-a-half-percent fee shall not apply to an increase in
equalized assessed value resulting from alterations, change in use
within existing footprint, reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from the payment of nonresidential
development fees in accordance with the exemptions required pursuant
to P.L. 2008, c. 46, as specified in the Form N-RDF, State of New
Jersey Nonresidential Development Certification/Exemption Form. Any
exemption claimed by a developer shall be substantiated by that developer.
(4)
A developer of a nonresidential development exempted from the nonresidential
development fee pursuant to P.L. 2008, c. 46, shall be subject to
it at such time the basis for the exemption no longer applies, and
shall make the payment of the nonresidential development fee, in that
event, within three years after that event or after the issuance of
the final certificate of occupancy of the nonresidential development,
whichever is later.
(5)
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by Somerdale as a lien against the real property
of the owner.
A.
Upon the granting of a preliminary, final or other applicable approval,
for a development, the applicable approving authority shall direct
its staff to notify the construction official responsible for the
issuance of a building permit.
B.
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, State of New Jersey Nonresidential
Development Certification/Exemption, to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The construction official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
C.
The construction official responsible for the issuance of a building
permit shall notify the local tax assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
D.
Within 90 days of receipt of that notice, the municipal tax assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
E.
The construction official responsible for the issuance of a final
certificate of occupancy notifies the local assessor of any and all
requests for the scheduling of a final inspection on property which
is subject to a development fee.
F.
Within 10 business days of a request for the scheduling of a final
inspection, the municipal assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development;
calculate the development fee; and thereafter notify the developer
of the amount of the fee.
G.
Should Somerdale fail to determine or notify the developer of the
amount of the development fee within 10 business days of the request
for final inspection, the developer may estimate the amount due and
pay that estimated amount consistent with the dispute process set
forth in Subsection b of § 37 of P.L. 2008, c. 46 (N.J.S.A.
40:55D-8.6).
H.
Fifty percent of the development fee shall be collected at the time
of issuance of the building permit. The remaining portion shall be
collected at the issuance of the certificate of occupancy. The developer
shall be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of certificate
of occupancy.
I.
Appeal of development fees.
(1)
A developer may challenge residential development fees imposed by
filing a challenge with the County Board of Taxation. Pending a review
and determination by the Board, collected fees shall be placed in
an interest bearing escrow account by Somerdale. Appeals from a determination
of the Board may be made to the tax court in accordance with the provisions
of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq.,
within 90 days after the date of such determination. Interest earned
on amounts escrowed shall be credited to the prevailing party.
(2)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by Somerdale. Appeals
from a determination of the Director may be made to the tax court
in accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
A.
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Chief Financial Officer for the purpose
of depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
B.
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development accessible;
(3)
Rental income from municipally operated units;
(4)
Repayments from affordable housing program loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with Somerdale's affordable
housing program.
C.
Within seven days from the opening of the trust fund account, Somerdale
shall provide COAH with written authorization, in the form of a three-party
escrow agreement between the municipality, the bank, and COAH, to
permit COAH to direct the disbursement of the funds as provided for
in N.J.A.C. 5:97-8.13(b).
D.
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by COAH.
A.
The expenditure of all funds shall conform to a spending plan approved
by COAH. Funds deposited in the housing trust fund may be used for
any activity approved by COAH to address Somerdale's fair share
obligation and may be set up as a grant or revolving loan program.
Such activities include, but are not limited to: preservation or purchase
of housing for the purpose of maintaining or implementing affordability
controls, rehabilitation, new construction of affordable housing units
and related costs, accessory apartment, market to affordable, or regional
housing partnership programs, conversion of existing nonresidential
buildings to create new affordable units, green building strategies
designed to be cost saving and in accordance with accepted national
or state standards, purchase of land for affordable housing, improvement
of land to be used for affordable housing, extensions or improvements
of roads and infrastructure to affordable housing sites, financial
assistance designed to increase affordability, administration necessary
for implementation of the Housing Element and Fair Share Plan, or
any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through
5:97-8.9 and specified in the approved spending plan.
B.
Funds shall not be expended to reimburse Somerdale for past housing
activities.
C.
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the municipal Fair Share
Plan. One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
(1)
Affordability assistance programs may include down payment assistance,
security deposit assistance, low-interest loans, rental assistance,
assistance with homeowners' association or condominium fees and
special assessments, and assistance with emergency repairs.
(2)
Affordability assistance to households earning 30% or less of median
income may include buying down the cost of low- or moderate-income
units in the municipal Fair Share Plan to make them affordable to
households earning 30% or less of median income. The use of development
fees in this manner shall entitle Somerdale to bonus credits pursuant
to N.J.A.C. 5:97-3.7.
(3)
Payments in lieu of constructing affordable units on site and funds
from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
D.
Somerdale may contract with a private or public entity to administer
any part of its Housing Element and Fair Share Plan, including the
requirement for affordability assistance, in accordance with N.J.A.C.
5:96-18.
E.
No more than 20% of all revenues collected from development fees
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or consultant fees necessary
to develop or implement a new construction program, a Housing Element
and Fair Share Plan, and/or an affirmative marketing program. In the
case of a rehabilitation program, no more than 20% of the revenues
collected from development fees shall be expended for such administrative
expenses. Administrative funds may be used for income qualification
of households, monitoring the turnover of sale and rental units, and
compliance with COAH's monitoring requirements. Legal or other
fees related to litigation opposing affordable housing sites or objecting
to the Council's regulations and/or action are not eligible uses
of the Affordable Housing Trust Fund.
Somerdale shall complete and return to COAH all monitoring forms
included in 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 Somerdale'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.
The ability for Somerdale to impose, collect and expend development
fees shall expire with its substantive certification unless Somerdale
has filed an adopted Housing Element and Fair Share Plan with COAH,
has petitioned for substantive certification, and has received COAH's
approval of its development fee ordinance. If Somerdale fails to renew
its ability to impose and collect development fees prior to the expiration
of substantive certification, it may be subject to forfeiture of any
or all funds remaining within its municipal trust fund. Any funds
so forfeited shall be deposited into the New Jersey Affordable Housing
Trust Fund established pursuant to § 20 of P.L. 1985, c.
222 (N.J.S.A. 52:27D-320). Somerdale shall not impose a residential
development fee on a development that receives preliminary or final
site plan approval after the expiration of its substantive certification
or judgment of compliance, nor shall Somerdale retroactively impose
a development fee on such a development. Somerdale shall not expend
development fees after the expiration of its substantive certification.
