[HISTORY: Adopted by the Mayor and Council of the Borough
of South Plainfield 12-4-2017 by Ord. No. 2098.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 540.
[1]
Editor’s Note: This ordinance also repealed former Ch.
504, Affordable Housing, adopted 9-5-2017 by Ord. No. 2085.
A.
Purpose. The purpose of these provisions is to provide a realistic
opportunity for the construction of the Borough of South Plainfield's
constitutional obligation to provide for its fair share of affordable
housing for households with low and moderate incomes, as directed
by the Superior Court and is consistent with N.J.A.C. 5:80-26.1 et
seq. and N.J.S.A. 52:27D-301 et seq.
B.
Applicability. The provisions of this chapter shall apply:
(1)
To all affordable housing developments and affordable housing units
that currently exist within the Borough of South Plainfield;
(2)
To all affordable housing developments and affordable housing units
that are proposed to be created pursuant to the Borough of South Plainfield's
Housing Element and Fair Share Plan;
(3)
To all other affordable housing developments and housing units that
are created pursuant to actions by the Borough of South Plainfield,
its Planning Board, or its Zoning Board of Adjustment, including projects
that may be funded with Low Income Housing Tax Credit financing, which
shall comply with the income and bedroom distribution requirements
of this chapter.
The following terms, when used in this chapter, shall have the
following meanings:
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity designated by the Borough to administer affordable
units in accordance with this chapter, N.J.A.C. 5:93,[1] and UHAC (N.J.A.C. 5:80-26).
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which new restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent level that is within the means of a
low- or moderate-income household, as defined within N.J.A.C. 5:93-7.4,[2] and, in the case of an ownership unit, that the sales
price for the unit conforms to the standards set forth in N.J.A.C.
5:80-26.6, as may be amended and supplemented, and, in the case of
a rental unit, that the rent for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A development included in or approved pursuant to the Housing
Element and Fair Share Plan or otherwise intended to address the Borough's
fair share obligation and includes, but is not limited to, an inclusionary
development, a municipal construction project, or a one-hundred-percent
affordable housing development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act and
approved for crediting by COAH, its successor entity, or the court
and/or funded through an affordable housing trust fund.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development wherein the unit is situated
are 62 years of age or older; or
At least 80% of the units are occupied by one person who is
55 years of age 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(b)(2).
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A structure in which households live in distinct bedrooms
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include, but are not limited
to, transitional facilities for the homeless; Class A, B, C, D and
E boarding homes as regulated by the DCA; residential health care
facilities as regulated by the New Jersey Department of Health; group
homes for the developmentally disabled and mentally ill as licensed
and/or regulated by the New Jersey Department of Human Services; and
congregate living arrangements.
A facility that is 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, as established by the
New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.) or its successor
entity.
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
requires 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
included in a proposed development, including the holder of an option
to contract to purchase, or other person having an enforceable proprietary
interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
Money paid by a developer for the improvement of property
as permitted in Holmdel Builder's Association v. Holmdel Township,
121 NJ 550 (1990).
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.
Those strategies that minimize the impact of development
on the environment and enhance the health, safety, and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
A development containing both affordable units and market
rate units. This term includes, but is not limited to, new construction,
the conversion of a nonresidential structure to residential use, and
the creation of new affordable units through the gut rehabilitation
or reconstruction of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the regional median income per household by household
size.
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 and 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 housing
region, as adopted annually by COAH or a successor entity approved
by the court.
A household with a total gross annual household income in
excess of 50% but less than 80% of the regional median income per
household by household size.
A restricted unit that is affordable to a moderate-income
household.
A residential development that is located in buildings that
contain five or more dwelling units, including, but not limited to
dwelling units that are located one over another, garden apartments,
townhouse developments, multistory apartment or condominium buildings,
and mixed-use developments containing a combination of nonresidential
and residential uses.
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a class
A beneficiary and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by duly adopted regional income limits published annually
by COAH or a successor entity.
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 property owner, 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 an ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as amended and supplemented, but does not include a market-rate unit
financed under UHORP or MONI.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the regional median income per household by household
size for the applicable housing region.
A restricted unit that is affordable to a very-low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for purposes of a rehabilitation
program.
A.
If the Borough permits the construction of multifamily or single-family
attached residential development that is "approvable" and "developable,"
as defined at N.J.A.C. 5:93-1.3,[1] at a gross residential density of six or more units per
acre, the Borough shall require that an appropriate percentage of
the residential units be set aside for very-low-, low- and moderate-income
households. For inclusionary projects in which the low and moderate
units are to be offered for sale, the appropriate set-aside percentage
is 20%; for projects in which the low- and moderate-income units are
to be offered for rent, the appropriate set-aside percentage is 15%.
(1)
This requirement shall apply to any multifamily or single-family
attached residential development, including the residential portion
of a mixed-use project, which consists of five or more new residential
units, whether permitted by a zoning amendment, a variance granted
by the Borough's Land Use Board, or adoption of a redevelopment
plan or amended redevelopment plan in areas in need of redevelopment
or rehabilitation.
(2)
In any such development for which the Borough's land use ordinances
or an adopted redevelopment plan already permitted residential development
as of February 6, 2017, this requirement shall only apply if the Borough
permits an increase in approvable and developable gross residential
density to at least twice the permitted approvable and developable
gross residential density as of the effective date of this agreement.
[1]
Editor's Note: N.J.A.C. 5:93-1.1 et seq. expired 10-16-2016.
B.
When calculating the set-aside requirement for a particular site,
if the imposition of the required set-aside requirement results in
a fractional unit, the requirement shall be rounded up to the next
whole number. For example, in the case of a fifteen-unit multifamily
rental development, a total of three affordable units would be required
(n.b., 15 units x 15% set-aside requirement = 2.25 affordable units
required, which is rounded up to 3 affordable units required).
C.
Nothing in this section precludes the Borough from imposing an affordable
housing set-aside requirement on a development that is not required
to have an affordable housing set-aside pursuant to this section,
when such imposition is consistent with N.J.S.A. 52:27D-311(h) and
other applicable law.
D.
This affordable housing set-aside requirement shall not create any
entitlement to a special dispensation or approval for a property owner
or applicant for a zoning amendment, variance, or adoption of a redevelopment
plan or amended redevelopment plan.
E.
This affordable housing set-aside requirement shall not apply to
any sites or specific zones identified in the Borough's Housing
Element and Fair Share Plan or the settlement agreement between the
Borough and Fair Share Housing Center, Inc., which was signed and
dated February 6, 2017. For such sites, density and set-aside standards
shall be governed by the specific standards set forth therein.
F.
This affordable housing set-aside requirement shall not apply to
developments containing four or fewer dwelling units.
G.
All subdivision and site plan approvals of qualifying residential
developments shall be conditioned upon compliance with the provisions
of this section.
H.
Where a developer demolishes existing dwelling units and builds new
dwelling units on the same site, the provisions of this section shall
apply only if the net number of new dwelling units is five or more
units.
Certificates of occupancy for developments that include affordable
housing units shall be subject to the following additional provisions:
A.
Phasing schedule for inclusionary development. Affordable housing
units shall be built, occupied, and receive certificates of occupancy
in accordance with the following schedule:
|
Maximum 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%
|
B.
No initial occupancy of a low- or moderate-income housing sales unit
shall be permitted prior to issuance of a certificate of occupancy,
and no certificate of occupancy for initial occupancy of a low- or
moderate-income housing sales unit shall issue unless there is a written
determination by the administrative agent that the unit is to be controlled
by a deed restriction and mortgage lien as required by UHAC.
C.
A certificate of reoccupancy for any occupancy of a low- or moderate-income
housing sales unit resulting from a resale shall be required, and
the Borough shall not issue such certificate unless there is a written
determination by the administrative agent that the unit is to be controlled
by the deed restriction and mortgage lien required by UHAC.
A.
Municipal Housing Liaison.
(1)
The Borough of South Plainfield shall appoint a specific municipal
employee to serve as the Municipal Housing Liaison, responsible for
administering the affordable housing program, including affordability
controls, the Affirmative Marketing Plan, monitoring and reporting,
and, where applicable, supervising any contracted administrative agent.
The Borough of South Plainfield shall adopt a resolution appointing
a Municipal Housing Liaison. The Municipal Housing Liaison shall be
appointed by the governing body and may be a full- or part-time municipal
employee. The Municipal Housing Liaison shall be approved by COAH,
its successor entity, or the court and shall be duly qualified through
a training program sponsored by the Affordable Housing Professionals
of New Jersey before assuming the duties of the Municipal Housing
Liaison.
(2)
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of South Plainfield, including the following responsibilities, which
may not be contracted out to the administrative agent:
(a)
Serving as the Borough of South Plainfield's primary point
of contact for all inquiries from the state, affordable housing providers,
administrative agents, and interested households;
(b)
Monitoring the status of all restricted units in the Borough
of South Plainfield's Fair Share Plan;
(c)
Compiling, verifying, submitting, and posting all of the required
annual monitoring reports in accordance with all applicable statutes
and regulations in effect at the time;
(d)
Coordinating meetings with affordable housing providers and
administrative agents, as needed; and
(e)
Attending continuing education opportunities on affordability
controls, compliance monitoring, and affirmative marketing at least
annually and more often as needed.
(3)
Subject to the approval of COAH, its successor entity, or the court,
the Borough of South Plainfield shall designate one or more administrative
agent(s) to administer newly constructed affordable units in accordance
with the UHAC. An operating manual for each affordable housing program
shall be provided by the administrative agent(s) to be adopted by
resolution of the governing body and subject to approval of COAH,
its successor entity, or the court. The operating manual(s) shall
be available for public inspection in the office of the Borough Clerk,
in the office of the Municipal Housing Liaison, and in the office(s)
of the administrative agent(s). The Municipal Housing Liaison shall
supervise the contracting administrative agent(s).
B.
Administrative agent.
(1)
The administrative agent shall be an independent entity serving under
contract and reporting to the municipality. The fees of the administrative
agent shall be paid by the owners of the affordable units for which
the services of the administrative agent are required. The administrative
agent shall perform the duties and responsibilities of an administrative
agent as set forth in the UHAC, including those set forth in Sections
5:80-26.14, 5:80-26.16 and 5:80-26.18 thereof, which include:
(a)
Affirmative marketing.
[1]
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Affirmative Marketing Plan of
the Borough of South Plainfield and the provisions of N.J.A.C. 5:80-26.15;
and
[2]
Providing counseling or contracting 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.
(b)
Household certification.
[1]
Soliciting, scheduling, conducting and following up on interviews
with interested households;
[2]
Conducting interviews and obtaining sufficient documentation
of gross income and assets upon which to base a determination of income
eligibility for a low- or moderate-income unit;
[3]
Providing written notification to each applicant as to the determination
of eligibility or noneligibility;
[4]
Requiring that all certified applicants for restricted units
execute a certificate substantially in the form, as applicable, of
either the ownership or rental certificates set forth in Appendixes
J and K of N.J.A.C. 5:80-26.1 et seq.;
[5]
Creating and maintaining a referral list of eligible applicant
households living in the housing region and eligible applicant households
with members working in the housing region where the units are located;
and
[6]
Employing a random selection process as provided in the Affirmative
Marketing Plan of the Borough of South Plainfield when referring households
for certification to affordable units.
(c)
Affordability controls.
[1]
Furnishing to attorneys or closing agents forms of deed restrictions
and mortgages for recording at the time of conveyance of title of
each restricted unit;
[2]
Creating and maintaining a file on each restricted unit for
its control period, including the recorded deed with restrictions,
recorded mortgage and note, as appropriate;
[3]
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Middlesex
County Register of Deeds or Middlesex County Clerk's office after
the termination of the affordability controls for each restricted
unit;
[4]
Communicating with lenders regarding foreclosures; and
[5]
Ensuring the issuance of continuing certificates of occupancy
or certifications pursuant to N.J.A.C. 5:80-26.10.
(d)
Resales and rerentals.
[1]
Instituting and maintaining an effective means of communicating
information between owners and the administrative agent regarding
the availability of restricted units for resale or rerental; and
[2]
Instituting and maintaining an effective means of communicating
information to low- and moderate-income households regarding the availability
of restricted units for resale or rerental.
(e)
Processing requests from unit owners.
[1]
Reviewing and approving requests for determination from owners
of restricted units who wish to take out home equity loans or refinance
during the term of their ownership that the amount of indebtedness
to be incurred will not violate the terms of this chapter;
[2]
Reviewing and approving requests to increase sales prices from
owners of restricted units who wish to make capital improvements to
the units that would affect the selling price, such authorizations
to be limited to those improvements resulting in additional bedrooms
or bathrooms and the depreciated cost of central air-conditioning
systems;
[3]
Notifying the municipality of an owner's intent to sell
a restricted unit; and
[4]
Making determinations on requests by owners of restricted units
for hardship waivers.
(f)
Enforcement.
[1]
Securing annually from the municipality a list of all affordable
housing units for which tax bills are mailed to absentee owners, and
notifying all such owners that they must either move back to their
unit or sell it;
[2]
Securing from all developers and sponsors of restricted units,
at the earliest point of contact in the processing of the project
or development, written acknowledgment 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;
[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 or other charges can be made;
[4]
Sending annual mailings to all owners of affordable dwelling
units, reminding them of the notices and requirements outlined in
N.J.A.C. 5:80-26.18(d)4;
[5]
Establishing a program for diverting unlawful rent payments
to the municipality's Affordable Housing Trust Fund; and
[6]
Creating and publishing a written operating manual for each
affordable housing program administered by the administrative agent,
to be approved by the Borough Council and COAH, its successor entity,
or the court, setting forth procedures for administering the affordability
controls.
(g)
Additional responsibilities.
[1]
The administrative agent shall have the authority to take all
actions necessary and appropriate to carry out its responsibilities
hereunder;
[2]
The administrative agent shall prepare monitoring reports for
submission to the Municipal Housing Liaison in time to meet any monitoring
requirements and deadlines imposed by COAH, its successor entity,
or the court; and
[3]
The administrative agent shall attend continuing education sessions
on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
C.
Affirmative marketing requirements.
(1)
The Borough of South Plainfield shall adopt by resolution an Affirmative
Marketing Plan, subject to approval of COAH, its successor entity,
or the court, which is compliant with N.J.A.C. 5:80-26.15, as may
be amended and supplemented.
(2)
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 that are being marketed
by a developer, sponsor, or owner of affordable housing. The Affirmative
Marketing Plan is intended to target those potentially eligible persons
who are least likely to apply for affordable units in that region.
The Affirmative Marketing Plan is a continuing program that directs
marketing activities toward Housing Region 3 and shall be followed
throughout the period of restriction.
(3)
The Affirmative Marketing Plan shall provide a regional preference
for all households that live and/or work in Housing Region 3, comprised
of Hunterdon, Middlesex and Somerset Counties.
(4)
The municipality has the ultimate responsibility for adopting the
Affirmative Marketing Plan and for the proper administration of the
Affirmative Marketing Program, including initial sales and rentals
and resales and rerentals. The administrative agent designated by
the Borough shall implement the Affirmative Marketing Plan to assure
the affirmative marketing of all affordable units.
(5)
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.
(6)
The Affirmative Marketing Plan shall describe the media to be used
in advertising and publicizing the availability of housing. In implementing
the Affirmative Marketing Plan, the administrative agent shall consider
the use of language translations where appropriate.
(7)
The affirmative marketing process for available affordable units
shall begin at least four months (i.e., 120 days) prior to the expected
date of occupancy.
(8)
Applications for affordable housing shall be available at the Borough
of South Plainfield Municipal Building, the South Plainfield Public
Library, the developer's sales office, the Middlesex and Somerset
Administration Buildings, and at the Middlesex, Somerset, and Hunterdon
County Library Headquarters. Applications shall be mailed to prospective
applicants upon request.
(9)
The Borough shall as part of its regional affirmative marketing strategies
during the period of its judgment of repose provide direct notice
to the Fair Share Housing Center, the New Brunswick, Plainfield Area,
Perth Amboy, and Metuchen/Edison branches of the NAACP, and the Latino
Action Network, of all available housing units, pursuant to the Borough's
Affirmative Marketing Plan.
(10)
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor, or owner.
D.
Occupancy standards.
(1)
In referring certified households to specific restricted units, the
administrative agent shall, to the extent feasible and without causing
an undue delay in the occupancy of a unit, strive to:
E.
Control periods for restricted ownership units and enforcement mechanisms.
(1)
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this chapter for a period of at least 30 years, until the Borough
of South Plainfield takes action to release the unit from such requirements;
prior to such action, a restricted ownership unit must remain subject
to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
(2)
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
(3)
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the administrative agent shall determine
the restricted price for the unit and shall also determine the nonrestricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value without the restrictions in place.
(4)
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the administrative agent a recapture
note obligating the purchaser (as well as the purchaser's heirs,
successors, and assigns) to repay, upon the first nonexempt sale after
the unit's release from the restrictions set forth in this chapter,
an amount equal to the difference between the unit's nonrestricted
fair market value and its restricted price. The recapture note shall
be secured by a recapture lien evidenced by a duly recorded mortgage
on the unit.
(5)
The affordability controls set forth in this chapter shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
(6)
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all Code standards upon the first
transfer of title following the removal of the restrictions provided
under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
F.
Price restrictions for restricted ownership units, homeowners'
association fees and resale prices.
(1)
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 master deeds of inclusionary developments shall provide
no distinction between the condominium or homeowners' association
fees and special assessments paid by low- and moderate-income purchasers
and those paid by market purchasers; and
(d)
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit based on anticipated
capital improvements. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
G.
Buyer income eligibility.
(1)
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income and moderate-income ownership units shall be reserved for households
with a gross household income less than 80% of median income.
(2)
Notwithstanding the foregoing, however, the administrative agent
may, upon approval by the Borough Council, and subject to the Court's
approval, permit moderate-income purchasers to buy low-income units
in housing markets if the administrative agent determines that there
is an insufficient number of eligible low-income purchasers to permit
prompt occupancy of the units. All such low-income units to be sold
to moderate-income households shall retain the required pricing and
pricing restrictions for low-income units.
(3)
A certified household that purchases a restricted ownership unit
must occupy it as the certified household's principal residence
and shall not lease the unit; provided, however, that the administrative
agent may permit the owner of a restricted ownership unit, upon application
and a showing of hardship, to lease the restricted unit to another
certified household for a period not to exceed one year.
(4)
The administrative agent shall certify a household as eligible for
a restricted ownership unit when the household is a 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 homeowners' association fees, as applicable)
does not exceed 33% of the household's eligible monthly income.
H.
Limitations on indebtedness secured by ownership unit; subordination.
(1)
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the owner shall apply to the administrative agent
for a determination in writing that the proposed indebtedness complies
with the provisions of this section, and the administrative agent
shall issue such determination prior to the owner incurring such indebtedness.
(2)
With the exception of first purchase money mortgages, neither an
owner nor a lender shall at any time cause or permit the total indebtedness
secured by a restricted ownership unit to exceed 95% of the maximum
allowable resale price of the unit, as such price is determined by
the administrative agent in accordance with N.J.A.C. 5:80-26.6(b).
I.
Capital improvements to ownership units.
(1)
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit based on capital
improvements made since the purchase of the unit. Eligible capital
improvements shall be those that render the unit suitable for a larger
household or that add an additional bathroom. In no event shall the
maximum sales price of an improved housing unit exceed the limits
of affordability for the larger household.
(2)
Upon the resale of a restricted ownership unit, all items of property
that are permanently affixed to the unit or were included when the
unit was initially restricted (e.g., refrigerator, range, washer,
dryer, dishwasher, wall-to-wall carpeting) shall be included in the
maximum allowable resale price. Other items may be sold to the purchaser
at a reasonable price that has been approved by the administrative
agent at the time of the signing of the agreement to purchase. The
purchase of central air conditioning installed subsequent to the initial
sale of the unit and not included in the base price may be made a
condition of the unit resale, provided that the price, which shall
be subject to ten-year, straight-line depreciation, has been approved
by the administrative agent. Unless otherwise approved by the administrative
agent, the purchase of any property other than central air conditioning
shall not be made a condition of the unit resale. The owner and the
purchaser must personally certify at the time of closing that no unapproved
transfer of funds for selling and receiving property has taken place
at the time of or as a condition of resale.
J.
Control periods for restricted rental units.
(1)
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this chapter for a period of at least 30 years, until the Borough
of South Plainfield takes action to release the unit from such requirements.
Prior to such action, a restricted rental unit must remain subject
to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
(a)
The control period for restricted rental units in the following
developments shall be at least 50 years, until the Borough of South
Plainfield takes action to release the unit from control requirements:
(2)
Deeds of all real property that include restricted rental units shall
contain deed restriction language. The deed restriction shall have
priority over all mortgages on the property, and the deed restriction
shall be filed by the developer or seller with the records office
of Middlesex County. A copy of the filed document shall be provided
to the administrative agent within 30 days of the receipt of a certificate
of occupancy.
(3)
A restricted rental unit shall remain subject to the affordability
controls of this chapter despite the occurrence of any of the following
events:
K.
Rent restrictions for rental units; leases.
(1)
A written lease shall be required for all restricted rental units,
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the administrative
agent.
(2)
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the administrative agent.
(3)
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the administrative agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this chapter.
(4)
No rent control ordinance or other pricing restriction shall be applicable
to either the market units or the affordable units in any development
in which at least 15% of the total number of dwelling units are restricted
rental units in compliance with this chapter.
L.
Tenant income eligibility.
(1)
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(a)
Very-low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of median
income;
(b)
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of median income;
and
(c)
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of median income.
(2)
The administrative agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income household,
low-income household, or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(a)
The household currently pays more than 35% (40% for households
eligible for age-restricted units) of its gross household income for
rent, and the proposed rent will reduce its housing costs;
(b)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(c)
The household is currently in substandard or overcrowded living
conditions;
(d)
The household documents the existence of assets with which the
household proposes to supplement the rent payments; or
(e)
The household documents reliable anticipated third-party assistance
from an outside source, such as a family member, in a form acceptable
to the administrative agent and the owner of the unit.
(3)
The applicant shall file documentation sufficient to establish the
existence of the circumstances enumerated in this subsection with
the administrative agent, who shall counsel the household on budgeting.
M.
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, utilizing the most recently published regional weighted average
of the uncapped Section 8 income limits published by HUD and the calculation
procedures set forth in the Consent Order entered on December 16,
2016, by the Honorable Douglas K. Wolfson, JSC, in In the Matter of
the Township of East Brunswick for a Judgment of Compliance of its
Third Round Housing Element and Fair Share Plan, Docket No.: MID-L-004013-15.
(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 rental 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, provided that at least 10% of all low-
and moderate-income rental units shall be affordable to very-low-income
households, earning 30% or less of the regional median household 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 sales prices
for each bedroom type, and low-income ownership units must be available
for at least two different sales prices for each bedroom type.
(5)
In determining the initial sales prices and rent levels for compliance
with the affordability average requirements for restricted units other
than assisted living facilities and age-restricted developments, the
following standards shall be used:
(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 sales prices and rents for compliance
with the affordability average requirements for restricted units in
assisted living facilities and age-restricted developments, 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 homeowners'
association fees do not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4,
as may be amended and supplemented; provided, however, that the price
shall be subject to the affordability average requirement of N.J.A.C.
5:80-26.3, as may be amended and supplemented.
(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
size household, including an allowance for tenant paid utilities,
as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented;
provided, however, that the rent shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(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 permitted percentage increase in the Housing
Consumer Price Index for the United States. This increase shall not
exceed 9% in any one year. Rents for units constructed pursuant to
low-income housing tax credit regulations shall be indexed pursuant
to the regulations governing low-income housing tax credits.
Developments that include affordable housing units shall be
subject to the following provisions:
A.
Low-income housing. Low-income housing shall be affordable, according
to Federal Department of Housing and Urban Development or other recognized
standards for home ownership and rental costs, and occupied or reserved
for occupancy by households with a gross household income equal to
50% or less of the median gross household income for households of
the same size within the housing region in which the housing is located,
and subject to affordability controls.
B.
Moderate-income housing. Moderate-income housing shall be affordable,
according to Federal Department of Housing and Urban Development or
other recognized standards for home ownership and rental costs, and
occupied or reserved for occupancy by households with a gross household
income equal to or more than 50% but less than 80% of the median gross
household income for households of the same size within the housing
region in which the housing is located, and subject to affordability
controls.
C.
In accordance with N.J.S.A. 52:27D-329.1 (P.L. 2008, c. 46) at least
13% of the affordable units provided within the Borough shall be reserved
for very-low-income households, i.e., households earning 30% or less
of the median income, and of that amount at least 50% shall be reserved
for very-low-income families (i.e., non-age-restricted and not reserved
for special needs populations). For developments with eight or more
affordable housing units on site, at least 13% of all low- and moderate-income
units shall be affordable to households earning no more than 30% of
median income. A minimum of 50% of these units shall be reserved for
very-low-income families. The very-low-income housing requirements
shall be counted as part of the low-income housing requirement.
D.
Age restriction. The number of affordable housing units that are
age restricted to senior citizens shall not exceed 25% of the total
number of affordable housing units constructed within the Borough,
as defined by and in accordance with the Federal Fair Housing Act
and as regulated by N.J.A.C. 5:92-14.[1] A request to age-restrict housing units may only be granted
after the Planning Board or Board of Adjustment has received the consent
of the Borough Council. In designing its project, the applicant may
propose constructing the senior citizen restricted affordable units
in the same building or buildings in order to maximize the potential
of preserving a more tranquil lifestyle for the senior citizen resident,
and to the foregoing extent, the requirement of integration of the
affordable units with conventional units is modified.
[1]
Editor's Note: N.J.A.C. 5:92 expired 4-13-2013.
E.
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- and/or very-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, if any, may be allocated among two- and three-bedroom
(or larger) 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.
F.
Location and design. Low- and moderate-income housing shall be designed
in accordance with the following provisions:
(1)
The very-low-, low-, and moderate-income housing units shall have
access to the same common open space and community facilities as market-priced
dwelling units.
(2)
The exterior design of the low- and moderate-income housing units
shall be harmonious in scale, texture, and materials with the market-priced
units on the tract.
(3)
Deed restrictions. Developers of housing units for low- and moderate-income
households shall enter into a written agreement, binding on all successors-in-interest,
in accordance with current COAH regulations or court requirements
for resale/rental control, at the time of sale, resale, rental or
rerental, regardless of the availability of federal, state, county
or Borough subsidy programs.
(4)
In inclusionary developments, to the extent possible, low- and moderate-income
units shall be integrated with the market units. Rental units may
be separated from for-sale units in a development for financing, ownership,
and management reasons.
G.
Utilities.
(1)
Affordable units shall utilize the same type of heating source as
market units within an inclusionary development.
(2)
Tenant-paid utilities included in the utility allowance shall be
set forth in the lease and shall be consistent with the utility allowance
approved by the DCA for its Section 8 program.
H.
Accessibility requirements. The first floor of all restricted townhouse
dwelling units and all restricted units in all other multistory buildings
shall be subject to the technical design standards of the Barrier
Free Subcode, N.J.A.C. 5:23-7, and the following:
(1)
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;
and
(b)
An adaptable kitchen on the first floor; and
(c)
An interior accessible route of travel on the first floor; and
(d)
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
(e)
If not all of the foregoing requirements in this subsection
can be satisfied, then an interior accessible route of travel must
be provided between stories within an individual unit, but if all
of the foregoing requirements in this subsection have been satisfied,
then an interior accessible route of travel shall not be required
between stories within an individual unit; 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, or evidence that the Borough of South Plainfield has collected
funds from the developer sufficient to make 10% of the adaptable entrances
in the development accessible:
[1]
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]
To this end, the builder of restricted units shall deposit funds
within the Borough of South Plainfield 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 the terms of this subsection shall
be used by the Borough of South Plainfield for the sole purpose of
making the adaptable entrance of an affordable unit accessible when
requested to do so by a person with a disability who occupies or intends
to occupy the unit and requires an accessible entrance.
[4]
The developer of the restricted units shall submit a design
plan and cost estimate to the Construction Official of the Borough
of South Plainfield for the conversion of adaptable to accessible
entrances.
[5]
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible meets
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7, and
that the cost estimate of such conversion is reasonable, payment shall
be made to the Borough of South Plainfield Affordable Housing Trust
Fund.
(2)
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
comply with the Barrier Free Subcode, N.J.A.C. 5:23-7.
A.
The administration of an alternative living arrangement shall be
in compliance with N.J.A.C. 5:93-5.8[1] and the UHAC, with the following exceptions:
(1)
Affirmative marketing (N.J.A.C. 5:80-26.15); provided, however, that
the units or bedrooms may be affirmatively marketed by the provider
in accordance with an alternative plan approved by the court.
(2)
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
[1]
Editor's Note: N.J.A.C. 5:93-1.1 et seq. expired 10-16-2016.
B.
With the exception of units established with capital funding through
a twenty-year operating contract with the Department of Human Services,
Division of Developmental Disabilities, alternative living arrangements
shall have at least thirty-year controls on affordability in accordance
with the UHAC, unless an alternative commitment is approved by the
court.
C.
The service provider for the alternative living arrangement shall
act as the administrative agent for the purposes of administering
the affirmative marketing and affordability requirements for the alternative
living arrangement.
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, a requirement for household
recertification, acceleration of all sums due under a mortgage, recuperation
of any funds from a sale in violation of the regulations, injunctive
relief to prevent further violation of the regulations, entry on the
premises, and specific performance.
B.
After providing written notice of a violation to an owner, developer,
or tenant of a low- or moderate-income unit and advising the owner,
developer, or tenant of the penalties for such violations, the municipality
may take the following action(s) against the owner, developer, or
tenant for any violation that remains uncured for a period of 60 days
after service of the written notice:
(1)
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation or violations of the regulations governing the
affordable housing unit. If the owner, developer, or tenant is adjudged
by the court to have violated any provision of the regulations governing
affordable housing units, the owner, developer, or tenant shall be
subject to one or more of the following penalties, at the discretion
of the Court:
(a)
A fine of not more than $500 per day or imprisonment for a period
not to exceed 90 days, or both, provided that each and every day that
the violation continues or exists shall be considered a separate and
specific violation of these provisions and not a continuation of the
initial offense.
(b)
In the case of an owner who has rented a low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Borough of South Plainfield Affordable Housing
Trust Fund of the gross amount of rent illegally collected.
(c)
In the case of an owner who has rented a low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation
costs, as determined by the court.
(2)
The municipality may file a court action in the Superior Court seeking
a judgment that would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any such judgment shall be enforceable as if the same
were a judgment of default of the first purchase money mortgage and
shall constitute a lien against the low- or moderate-income unit.
(a)
The judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the low-
and moderate-income unit of the violating owner shall be sold at a
sale price which is not less than the amount necessary to fully satisfy
and pay off any first purchase money mortgage and prior liens and
the costs of the enforcement proceedings incurred by the municipality,
including attorney's fees. The violating owner shall have his
right to possession terminated as well as his title conveyed pursuant
to the Sheriff's sale.
(b)
The proceeds of the Sheriff's sale shall first be applied
to satisfy the first purchase money mortgage lien and any prior liens
upon the 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 previously mentioned, the violating
owner shall be personally responsible for the full extent of such
deficiency, in addition to any and all costs incurred by the municipality
in connection with collecting such deficiency. In the event that a
surplus remains after satisfying all of the above, such surplus, if
any, shall be placed in escrow by the municipality for the owner and
shall be held in such escrow for a maximum period of two years or
until such earlier time as the owner shall make a claim with the municipality
for such. Failure of the owner to claim such balance within the two-year
period shall automatically result in a forfeiture of such balance
to the municipality. Any interest accrued or earned on such balance
while being held in escrow shall belong to and shall be paid to the
municipality, whether such balance shall be paid to the owner or forfeited
to the municipality.
(c)
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the Sheriff's sale, subject to the restrictions
and provisions of the regulations governing the affordable housing
unit. The owner determined to be in violation of the provisions of
this plan and from whom title and possession were taken by means of
the Sheriff's sale shall not be entitled to any right of redemption.
(d)
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the municipality may acquire title to the 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 that would have been realized from an actual
sale, as previously described.
(e)
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.
(f)
The owner shall remain fully obligated, responsible and liable
for complying with the terms and restrictions of governing affordable
housing units until title is conveyed from the owner.
A.
Starting on March 30, 2018, and on each anniversary until March 30,
2025, the Borough shall provide annual reporting of trust fund activity
to the New Jersey Department of Community Affairs, Council on Affordable
Housing, or Local Government Services, or other entity designated
by the State of New Jersey. The reporting shall include an accounting
of all housing trust fund activity, including the source and amount
of funds collected and the amount and purpose for which any funds
have been expended.
B.
Starting on March 30, 2018, and on each anniversary until March 30,
2025, the Borough shall provide annual reporting of the status of
all affordable housing activity within the municipality through posting
on the municipal website with a copy of such posting provided to the
Fair Share Housing Center, using forms previously developed for this
purpose by the Council on Affordable Housing or any other forms endorsed
by the Special Master and the Fair Share Housing Center.
C.
For the midpoint realistic opportunity review due on July 1, 2020,
as required pursuant to N.J.S.A. 52:27D-313, the Borough will post
on its municipal website, with a copy provided to Fair Share Housing
Center, a status report as to its implementation of its plan and an
analysis of whether any unbuilt sites or unfulfilled mechanisms continue
to present a realistic opportunity and whether any mechanisms to meet
unmet need should be revised or supplemented. Such posting shall invite
any interested party to submit comments to the municipality, with
a copy to Fair Share Housing Center, regarding whether any sites no
longer present a realistic opportunity and should be replaced and
whether any mechanisms to meet unmet need should be revised or supplemented.
Any interested party may by motion request a hearing before the court
regarding these issues.
D.
For the review of very-low-income housing requirements required by
N.J.S.A. 52:27D-329.1, within 30 days of March 30, 2020, and every
third year thereafter, the Borough will post on its municipal website,
with a copy provided to Fair Share Housing Center, a status report
as to its satisfaction of its very-low-income requirements, including
the family very-low-income requirements. Such posting shall invite
any interested party to submit comments to the municipality and to
the Fair Share Housing Center on the issue of whether the municipality
has complied with its very-low-income housing obligation under the
terms of this settlement.
Appeals from all decisions of an administrative agent appointed
pursuant to this chapter shall be filed in writing with the court.
A.
Purpose.
(1)
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.
(2)
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and
the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 40:55D-8.7), the Council on Affordable Housing (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 a court of competent jurisdiction
and have an approved spending plan may retain fees collected from
nonresidential development.
(3)
Pursuant to the March 10, 2015, Supreme Court order, the Court transferred
all functions, powers, and duties to the courts. Any and all reference
to COAH shall mean the courts.
(4)
This chapter establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's and the
Court's regulations and in accordance P.L. 2008, c. 46, Sections
8 and 32 through 38.[1] Fees collected pursuant to this chapter shall be used
for the sole purpose of providing low- and moderate-income housing.
This chapter shall be interpreted within the framework of COAH's
rules on development fees, codified at N.J.A.C. 5:97-8.[2]
B.
C.
Imposition of affordable housing development fees.
(1)
Residential development.
(a)
Within all the zoning districts in the Borough of South Plainfield,
residential developers, except for developers of the types of development
specifically exempted below, shall pay a fee of 1.5% of the equalized
assessed value for residential development, provided that no increased
density is permitted.
(b)
Where an increase in density is permitted through a variance
granted pursuant to N.J.S.A. 40:55D-70d(5) or a rezoning, redevelopment
plan, or redevelopment plan amendment that is adopted after the effective
date of this chapter, developers shall be required to pay a development
fee of 6.0% of the equalized assessed value for each additional unit
that may be realized, except that this provision shall not be applicable
to a development that will include a set-aside of affordable housing
units. 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.
(2)
Nonresidential development.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of development specifically exempted below,
shall pay a fee equal to 2.5% of the equalized assessed value of the
land and improvements for all new nonresidential construction on an
unimproved lot or lots, provided that no increase in floor area is
permitted.
(b)
Nonresidential developers, except for developers of the types
of development specifically exempted below, shall pay a fee equal
to 2.5% of the increase in total equalized assessed value resulting
from any additions to existing structures to be used for nonresidential
purposes.
(c)
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 improvements and the equalized assessed
value of the newly improved structure, i.e., land and improvements,
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.
(d)
Developers that convert any portion of an existing residential
structure to a nonresidential use shall pay a development fee of 2.5%.
The development fee shall be calculated based on the increase in the
equalized assessed value of the converted structure.
D.
Eligible exactions, ineligible exactions, and exemptions.
(1)
Residential development.
(a)
Developers of low- and moderate-income housing shall be exempt
from paying development fees, provided that the minimum number of
affordable units required for the development is completed in accordance
with this chapter. A payment in lieu of construction or development
fee payment shall only be used to fund affordable housing activities
within the Borough in accordance with N.J.A.C. 5:97[4] or as approved by COAH or the Court.
[4]
Editor's Note: N.J.A.C. 5:97 expired 6-2-2015.
(b)
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 applicable
development fee percentage shall be vested on the date that the building
permit is issued.
(c)
Owner-occupied residential structures demolished and replaced
because of a fire, flood, or natural disaster shall be exempt from
paying a development fee.
(d)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(e)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, which requires
the issuance of a certificate of occupancy (for example, when a single-family
home is converted to a two-family home or a single-family home is
converted to an apartment building). The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(f)
Development fees shall be imposed and collected when a certificate
of occupancy is issued for a new residential unit on a newly created
lot that is the result of a subdivision. The development fee shall
be calculated on the equalized assessed value of the land and improvements.
(g)
Additions to existing homes and improvements such as decks,
patios and like shall be exempt from the payment of a development
fee.
(2)
Nonresidential development.
(a)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the development fee of 25%, unless
otherwise exempted below.
(b)
The development fee of 25% shall not apply to an increase in
equalized assessed value resulting from alterations, change in use
within the existing building footprint, reconstruction, renovations
and repairs.
(c)
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.
(d)
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to P.L. 2008, c. 46 shall
be subject to the development fee at such time as 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 for the
nonresidential development, whichever is later.
(e)
If a property that was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Borough of South Plainfield as a lien against
the real property of the owner.
(f)
Developers that have received final approval prior to the adoption
of a municipal development fee ordinance shall be exempt from paying
a development fee, unless the developer seeks a substantial change
in the approval.
E.
Collection of fees.
(1)
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.
(2)
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.
(3)
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 that is subject to a development
fee.
(4)
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.
(5)
The construction official responsible for the issuance of a final
certificate of occupancy shall notify the local assessor of any and
all requests for the scheduling of a final inspection on property
that is subject to a development fee.
(6)
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 associated
with the development; calculate the development fee; and thereafter
notify the developer of the amount of the fee.
(7)
Should the Borough of South Plainfield fail to determine or notify
the developer of the amount of the development fee within 10 business
days of the request for final inspection, the developer may estimate
the amount due and pay that estimated amount consistent with the dispute
process set forth in Subsection b of Section 37 of P.L. 2008, c. 46
(N.J.S.A. 40:55D-8.6).
(8)
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.
(9)
Appeal of development fees.
(a)
A developer may challenge residential development fees imposed
by filing a challenge with the County Board of Taxation. Pending a
review and determination by the Board, collected fees shall be placed
in an interest-bearing escrow account by the Borough of South Plainfield.
Appeals from a determination of the Board may be made to the Tax Court
in accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
(b)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by the Borough of
South Plainfield. 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.
F.
Affordable Housing Trust Fund.
(1)
There is hereby created a separate, interest-bearing Housing Trust
Fund to be maintained by the Chief Financial Officer of the Borough
for depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
(2)
The following additional funds, if collected by the Borough, shall
be deposited in the Affordable Housing Trust Fund and shall at all
times be identifiable by source and amount:
(a)
Payments in lieu of construction of affordable units shall be
separately identifiable from other payments in lieu of construction
as a subaccount within the Affordable Housing Trust Fund;
(b)
Developer-contributed funds to make 10% of the adaptable entrances
in a 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 units; and
(g)
Any other funds collected in connection with the Borough of
South Plainfield's affordable housing program.
G.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the Housing Trust Fund may be used
for any activity approved by the Court to address the Borough of South
Plainfield'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.[5]
[5]
Editor's Note: N.J.A.C. 5:97 expired 6-2-2015.
(2)
Funds shall not be expended to reimburse the Borough of South Plainfield
for past affordable housing activities.
(3)
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.
(a)
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.
(b)
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.
(c)
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.
(5)
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 the Court'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.
H.
Monitoring.
(1)
The Borough of South Plainfield shall complete and return to the
New Jersey Department of Community Affairs (NJDCA), Local Government
Services, all monitoring forms required in connection with 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 its housing program,
as well as in connection with the expenditure of revenues and implementation
of the plan approved by the Court.
(2)
All monitoring reports shall be completed on forms designed by the
NJDCA or successor entity for that purpose.
I.
Ongoing collection of fees.
(1)
The ability for the Borough of South Plainfield to impose, collect
and expend development fees shall expire with the end of the repose
period covered by its judgment of compliance unless the Borough has
filed an adopted Housing Element and Fair Share Plan with the Court
or with a designated administrative entity of the State of New Jersey,
has petitioned for a judgment of compliance or substantive certification,
and has received approval of its development fee ordinance by the
entity that will be reviewing the Housing Element and Fair Share Plan.
(2)
If the Borough of South Plainfield fails to renew its ability to
impose and collect development fees prior to the expiration of its
judgment of compliance, 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 Section 20 of P.L. 1985, c. 222
(N.J.S.A. 52:27D-320). The Borough of South Plainfield shall not impose
a development fee on a development that receives preliminary or final
site plan approval after the expiration of its judgment of compliance,
nor shall the Borough retroactively impose a development fee on such
a development. The Borough of South Plainfield shall not expend any
development fees after the expiration of its judgment of compliance.
