[Added 2-5-2002 by Ord. No. 1191; amended 9-4-2018 by Ord. No.
1567-18]
A.
Purpose. The purpose of this article is to provide a realistic opportunity
for the construction of the Borough's constitutional obligation to
provide for its fair share of affordable housing for households with
very low, low, and moderate incomes, as directed by the Superior Court
and is consistent with the Fair Housing Act (N.J.S.A. 52:27D-301 et
seq.), Uniform Housing Affordability Controls (N.J.A.C. 5:80-26.1,
et seq.), except where modified by the terms of a settlement agreement
between the Borough and Fair Share Housing Center (FSHC) such that
the statutory requirement to provide very-low-income units equal to
13% of affordable units approved and constructed after July 1, 2008,
to be affordable to households at 30% of the regional median income,
override the UHAC requirement that 10% of all low- and moderate-income
units must be affordable at 35% of the regional median income, and
the Borough's constitutional obligation to provide a fair share of
affordable housing for low- and moderate-income households.
B.
Applicability. The provisions of this article shall apply:
(1)
To all affordable housing developments and affordable housing units
that currently exist within the Borough of Emerson.
(2)
To all affordable housing developments and affordable housing units
that are proposed to be created pursuant to the Borough of Emerson'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 Emerson or its Land Use Board, including projects that may be funded with Low-Income Housing Tax Credit financing, or projects subject to the mandatory affordable housing set-aside set forth in § 290-13D of this chapter, which shall comply with the income and bedroom distribution requirements of this article.
(4)
To all developments that contain low- and moderate-income housing
units, including any currently anticipated future developments that
will provide low- and moderate-income housing units.
[Added at time of adoption of Code (see Ch. 1, General Provisions,
Art. I)]
A.
On the first anniversary of the entry of the order granting the Borough
a final judgment of compliance and repose in IMO Application of the
Borough of Emerson, Docket No. BER-L-6300-15 and every anniversary
thereafter through the end of 2025, the Borough shall provide annual
reporting of its Affordable Housing Trust Fund activity to the New
Jersey Department of Community Affairs, or other entity designated
by the State of New Jersey, with a copy provided to Fair Share Housing
Center and posted on the municipal website, using forms developed
for this purpose by the New Jersey Department of Community Affairs.
The reporting shall include an accounting of all Affordable 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.
On the first anniversary of the entry of the order granting the Borough
a final judgment of compliance and repose in IMO Application of the
Borough of Emerson, Docket No. BER-L-6300-15 and every anniversary
thereafter through the end of 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 copies
provided to Fair Share Housing Center, using forms previously developed
for this purpose by the Council on Affordable Housing or any other
forms endorsed by the court-appointed Special Master and Fair Share
Housing Center. Such forms shall be provided to the Borough.
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 shall post
on its municipal website, with copies 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
copies provided 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.
D.
For the review of very-low-income housing requirements required by
N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary of
the entry of the order granting the Borough a final judgment of compliance
and repose in IMO Application of the Borough of Emerson, Docket No.
BER-L-6300-15, and every third year thereafter, the Borough will post
on its municipal website, with copies 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 referenced
in the settlement agreement. Such posting shall invite any interested
party to submit comments to the municipality, with copies provided
to Fair Share Housing Center, on the issue of whether the municipality
has complied with its very-low-income housing obligation under the
terms of the settlement agreement.
The following terms when used in this article shall have the
meanings given in this section:
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 article, 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 100% 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 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: 1) all the residents of the development wherein the unit
is situated are 62 years of age or older; or 2) at least 80% of the
units are occupied by one person who is 55 years of age or older;
or 3) 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.
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 State of New Jersey Department
of Community Affairs; 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 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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 any
successor agency charged with the administration of the Act.
The Superior Court of New Jersey, Law Division, Somerset
County.
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.
The plan that describes the mechanisms, strategies and the
funding sources, if any, by which the Borough proposes to address
its affordable housing obligation as established in the Housing Element,
including the draft ordinances necessary to implement that plan, and
addresses the requirements of N.J.A.C. 5:93-5.[3]
The portion of the Borough's Master Plan, required by the
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-28b(3) and the Act,
that includes the information required by N.J.A.C. 5:93-5.1[4] and establishes the Borough's fair share obligation.
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 household income 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 household income
by household size.
A restricted unit that is affordable to a moderate-income
household.
The employee charged by the governing body with the responsibility for oversight and administration of the affordable housing program for Emerson and such other duties as set forth in § 57-59 of the Code of the Borough of Emerson.
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 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 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 et seq.
A household with a total gross annual household income equal
to 30% or less of the regional median household income by household
size.
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.
[1]
Editor's Note: Chapter 93 of the New Jersey Administrative
Code expired 10-16-2016.
[2]
Editor's Note: Chapter 93 of the New Jersey Administrative
Code expired 10-16-2016.
[3]
Editor's Note: Chapter 93 of the New Jersey Administrative
Code expired 10-16-2016.
[4]
Editor's Note: Chapter 93 of the New Jersey Administrative
Code expired 10-16-2016.
A.
Emerson's rehabilitation program shall be designed to renovate deficient
housing units occupied by low and moderate-income households such
that, after rehabilitation, these units will comply with the New Jersey
State Housing Code pursuant to N.J.A.C. 5:28.
B.
Both owner-occupied and renter-occupied units shall be eligible for
rehabilitation funds.
C.
All rehabilitated units shall remain affordable to low- and moderate-income
households for a period of 10 years (the control period). For owner-occupied
units the control period will be enforced with a lien and for renter-occupied
units the control period will be enforced with a deed restriction.
D.
The Borough shall dedicate a minimum of $10,000 in hard costs for
each unit to be rehabilitated through this program.
E.
The Borough shall adopt a resolution committing to fund any shortfall
in the rehabilitation program.
F.
The Borough shall designate, subject to the approval of the court,
one or more administrative agents to administer the rehabilitation
program in accordance with N.J.A.C. 5:93.[1] The administrative agent(s) shall provide a rehabilitation
manual for the owner occupancy rehabilitation program and a rehabilitation
manual for the rental occupancy rehabilitation program to be adopted
by resolution of the governing body and subject to approval of the
court. Both rehabilitation manuals shall be available for public inspection
in the office of the Municipal Clerk and in the office(s) of the administrative
agent(s).
[1]
Editor's Note: Chapter 93 of the New Jersey Administrative
Code expired 10-16-2016.
G.
Units in a rehabilitation program shall be exempt from the Uniform
Housing Affordability Controls (UHAC), but shall be administered in
accordance with the following:
(1)
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is re-rented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a low- or moderate-income household at an affordable rent
and affirmatively marketed pursuant to N.J.A.C. 5:93-11 and UHAC.
(2)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to UHAC.
(3)
Rents in rehabilitated units may increase annually based on
the standards per this article.
(4)
Applicant and/or tenant households shall be certified as income-eligible
in accordance with UHAC, except that households in owner occupied
units shall be exempt from the regional asset limit.
A.
The administration of an alternative living arrangement shall be
in compliance with N.J.A.C. 5:93-5.8[1] and 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: Chapter 93 of the New Jersey Administrative
Code 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 UHAC, unless an alternative commitment is approved by the court.
(1)
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.
Purpose. This article sets forth the requirements applicable
to low- and moderate-income housing units, where such units are required
to be provided as part of either an inclusionary development in the
R-MF-AH Zone, the MFRAH North Zone or the MFRAH South Zone; a 100%
affordable senior housing project developed as a conditional use in
the R-7.5 Zone; or a development subject to the Affordable Housing
Overlay Zone set-aside.
A.
In inclusionary developments the following schedule shall be followed:
|
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 unit shall be issued 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 a deed restriction and mortgage lien as required by UHAC.
D.
The certificate of reoccupancy shall not be required where there
is a written determination by the administrative agent that controls
are allowed to expire or that the repayment option is being exercised
pursuant to N.J.A.C. 5:93-9.8 through 12.3.[1]
[1]
Editor's Note: Chapter 93 of the New Jersey Administrative
Code expired 10-16-2016.
A.
Fractional units. Inclusionary developments that result in an affordable
housing obligation that is fractional shall either round up and provide
the additional affordable unit or provide a payment-in-lieu for the
fractional amount.
B.
Payment-in-lieu. The payment-in-lieu amount for Emerson shall be
calculated based on pro formas on file. To calculate the payment-in-lieu
the developer shall multiply the fraction by the payment.
A.
Low/moderate split and bedroom distribution of affordable housing
units:
(1)
The fair share obligation shall be divided equally between low
and moderate-income units, except that where there is an odd number
of affordable housing units, the extra unit shall be a low-income
unit. At least 13% of all restricted rental units shall be very-low-income
units (affordable to a household earning 30% or less of median income).
The very-low-income units shall be counted as part of the required
number of low-income units within the development.
(2)
At least 25% of the obligation shall be met through rental units,
including at least half in rental units available to families.
(3)
A maximum of 25% of the Borough's obligation may be met with
age-restricted units. At least half of all affordable units in the
Borough's plan shall be nonrestricted.
(4)
In each affordable development, at least 50% of the restricted
units within each bedroom distribution shall be low-income units.
(5)
Affordable developments that are not age-restricted shall be
structured in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
(b)
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
(c)
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
(d)
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(6)
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.
This standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
B.
Accessibility requirements.
(2)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
(a)
An adaptable toilet and bathing facility on the first floor;
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 casing for the installation of a door, on the first floor; and
(e)
If not all of the foregoing requirements in Subsection B(2)(a) through (d) can be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the terms of Subsection B(2)(a) through (d) above 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[2], or evidence that Emerson 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 person with disabilities 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 Emerson's Affordable Housing Trust
Fund sufficient to install accessible entrances in 10% of the affordable
units that have been constructed with adaptable entrances.
[3]
The funds deposited under Subsection B(2)(f)[2] above shall be used by the Borough of Emerson 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 Code Official
of the Borough of Emerson for the conversion of adaptable to accessible
entrances.
[5]
Once the Construction Code Official has determined
that the design plan to convert the unit entrances from adaptable
to accessible meet the requirements of the Barrier Free Subcode, N.J.A.C.
5:23-7[3], and that the cost estimate of such conversion is reasonable,
payment shall be made to the Borough's Affordable Housing Trust Fund
in care of the Borough Chief Financial Officer who shall ensure that
the funds are deposited into the Affordable Housing Trust Fund and
appropriately earmarked.
[3]
Editor's Note: See N.J.A.C. 5:23-3.14.
[6]
Full compliance with the foregoing provisions shall
not be required where an entity can demonstrate that it is "site impracticable"
to meet the requirements. Determinations of site impracticability
shall be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
[2]
Editor's Note: See N.J.A.C. 5:23-3.14.
D.
Maximum rents and sales prices.
(1)
In establishing rents and sales prices of affordable housing
units, the administrative agent shall follow the procedures set forth
in UHAC and by the Superior Court, utilizing the regional income limits
established.
(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
13% 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, with such very-low-income units counted towards
the low-income housing requirement.
(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
homeowner association fees do not exceed 28% of the eligible monthly
income of the appropriate size household as determined under N.J.A.C.
5:80-26.4, as may be amended and supplemented; provided, however,
that the price shall be subject to the affordability average requirement
of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(8)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
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. Income limits for all units
for which income limits are not already established through a federal
program exempted from UHAC pursuant to N.J.A.C. 5:80-26.1 shall be
updated by the Borough annually within 30 days of the publication
of determinations of median income by HUD as follows:
(a)
Regional income limits shall be established for the Region 1
based on the median income by household size, which shall be established
by a regional weighted average of the uncapped Section 8 income limits
published by HUD. To compute this regional income limit, the HUD determination
of median county income for a family of four is multiplied by the
estimated households within the county according to the most recent
decennial census. The resulting product for each county within the
housing region is summed. The sum is divided by the estimated total
households from the most recent decennial census in Region 1. This
quotient represents the regional weighted average of median income
for a household of four. The income limit for a moderate-income unit
for a household of four shall be 80% of the regional weighted average
median income for a family of four. The income limit for a low-income
unit for a household of four shall be 50% of the HUD determination
of the regional weighted average median income for a family of four.
The income limit for a very-low-income unit for a household of four
shall be 30% of the regional weighted average median income for a
family of four. These income limits shall be adjusted by household
size based on multipliers used by HUD to adjust median income by household
size. In no event shall the income limits be less than those for the
previous year.
(b)
The income limits calculated each year shall be the result of applying the percentages set forth in Subsection D(9)(a) above to HUD's determination of median income for the relevant fiscal year, and shall be utilized until the Borough updates the income limits after HUD has published revised determinations of median income for the next fiscal year.
(c)
The regional asset limit used in determining an applicant's eligibility for affordable housing pursuant to N.J.A.C. 5:80-26.16(b)3 shall be calculated by the Borough annually by taking the percentage increase of the income limits calculated pursuant to Subsection D(9)(a) above over the previous year's income limits, and applying the same percentage increase to the regional asset limit from the prior year. In no event shall the regional asset limit be less than that for the previous year.
(10)
The rent of very-low, 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 (Northeast Urban
Area). 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.
A.
Affordable units shall utilize the same type of heating source as
market units within an inclusionary development.
B.
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 U.S. Department of Housing and Urban Development for
use in New Jersey.
A.
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:
B.
Additional provisions related to occupancy standards (if any) shall
be provided in the Municipal Operating Manual.
Purpose. This article is intended to implement the provisions
of Subchapter 9 of the COAH regulations, N.J.A.C. 5:93-9.17[1] and N.J.A.C. 5:80-26, which establish regulations designed
to provide assurance that low- and moderate-income housing units will
remain affordable over time; as well as Subchapter 11 of the COAH
regulations, N.J.A.C. 5:93-11. It applies to all new developments
in Emerson that contain proposed low- and moderate-income housing
units.
[1]
Editor's Note: Chapter 93 of the New Jersey Administrative
Code expired 10-16-2016.
A.
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this article for a period of at least 30 years, until the Borough
takes action to release the unit from such requirements; prior to
such action, a restricted ownership unit shall remain subject to the
requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
B.
Rehabilitated owner-occupied housing units that are improved to code
standards shall be subject to affordability controls for a period
of 10 years.
C.
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
D.
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.
E.
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 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.
F.
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.
G.
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Code 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.
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 homeowner association fees and special
assessments paid by low and moderate-income purchasers and those paid
by market purchasers.
D.
The owners of restricted ownership units may apply to the administrative agent to increase the maximum sales price for the unit on the basis of anticipated capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household or the addition of a bathroom. See § 290-65.5.
A.
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income and moderate-income ownership units shall be reserved for households
with a gross household income less than 80% of median income.
B.
Notwithstanding the foregoing, however, the administrative agent
may, upon approval by the Mayor and 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
are 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.
C.
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.
D.
The administrative agent shall certify a household as eligible for
a restricted ownership unit when the household is a low-income household
or a moderate-income household, as applicable to the unit, and the
estimated monthly housing cost for the particular unit (including
principal, interest, taxes, homeowner and private mortgage insurance
and condominium or homeowner association fees, as applicable) does
not exceed 33% of the household's eligible monthly income.
A.
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.
B.
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).
A.
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit on the basis
of capital improvements made since the purchase of the unit. Eligible
capital improvements shall be those that render the unit suitable
for a larger household or that adds 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.
B.
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 the price, which shall be subject to
ten-year, straight-line depreciation, has been approved by the administrative
agent. Unless otherwise approved by the administrative agent, the
purchase of any property other than central air conditioning shall
not be made a condition of the unit resale. The owner and the purchaser
must personally certify at the time of closing that no unapproved
transfer of funds for the purpose of selling and receiving property
has taken place at the time of or as a condition of resale.
A.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this article for a period of at least 30 years, until the Borough
takes action to release the unit from such requirements. Prior to
such action, a restricted rental unit shall remain subject to the
requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
(1)
Restricted rental units created as part of developments receiving
9% low-income housing tax credits must comply with a control period
of not less than a thirty-year compliance period plus a fifteen-year
extended use period.
B.
Rehabilitated renter-occupied housing units that are improved to
code standards shall be subject to affordability controls for a period
of 10 years.
C.
Deeds of all real property that include restricted rental units shall
contain deed restriction language. The deed restriction shall have
priority over all mortgages on the property, and the deed restriction
shall be filed by the developer or seller with the records office
of the County of Bergen. The deed shall also identify each affordable
unit by apartment number and/or address and whether that unit is designated
as a very-low-, low- or moderate-income unit. Neither the unit nor
its affordability designation shall change throughout the term of
the deed restriction. A copy of the filed document shall be provided
to the administrative agent within 30 days of the receipt of a certificate
of occupancy.
D.
A restricted rental unit shall remain subject to the affordability
controls of this article despite the occurrence of any of the following
events:
A.
A written lease shall be required for all restricted rental units
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the administrative
agent.
B.
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the administrative agent.
C.
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the administrative agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this article.
D.
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 article.
A.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(1)
Very-low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of median
income.
(2)
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of median income.
(3)
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of median income.
B.
The administrative agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income 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:
(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 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.
B.
The administrative agent shall be an independent entity serving under
contract to and reporting to the municipality. For new sale and rental
developments, all of 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. For resales, single-family
homeowners and condominium homeowners shall be required to pay 3%
of the sales price for services provided by the administrative agent
related to the resale of their homes. That fee shall be collected
at closing and paid directly to the administrative agent. The administrative
agent shall perform the duties and responsibilities of an administrative
agent as set forth in UHAC, including those set forth in §§ 5:80-26.14,
16 and 18 thereof, which include:
(1)
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the affirmative marketing plan of
the Borough of Emerson 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.
C.
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 Appendices
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 Emerson when referring households
for certification to affordable units.
D.
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 Bergen
County Register of Deeds or 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.
E.
Sales and rentals:
(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.
F.
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 article;
(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.
G.
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 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;
(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 governing body and the court, setting forth
procedures for administering the affordability controls.
H.
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 the court.
(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.
Appeals from all decisions of an administrative agent appointed
pursuant to this article shall be filed in writing with the court.
A.
The Borough of Emerson shall adopt by resolution an affirmative marketing
plan, subject to the approval of the court, that is compliant with
N.J.A.C. 5:80-26.15, as may be amended and supplemented.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
The affirmative marketing plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to housing units which are being marketed
by a developer, sponsor or owner of affordable housing. The affirmative
marketing plan is intended to target those potentially eligible persons
who are least likely to apply for affordable units in that region.
In addition, as a result of the Settlement Agreement with FSHC, the
affirmative marketing plan shall require the notification of the New
Jersey State Conference of the NAACP, the FSHC, the Latino Action
Network, the Bergen County Chapter of the NAACP and the Bergen County
Urban League. It is a continuing program that directs marketing activities
toward Housing Region 1 and is required to be followed throughout
the period of restriction.
C.
The affirmative marketing plan shall provide a regional preference
for all households that live and/or work in Housing Region 1, comprised
of Bergen, Hudson, Passaic and Sussex Counties.
D.
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 of Emerson shall implement the affirmative marketing plan
to assure the affirmative marketing of all affordable units.
E.
In implementing the affirmative marketing plan, the administrative
agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
F.
The affirmative marketing 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.
G.
The affirmative marketing process for available affordable units
shall begin at least four months (120 days) prior to the expected
date of occupancy.
H.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
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. 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 Emerson Affordable Housing
Trust Fund of the gross amount of rent illegally collected;
(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 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 aforesaid, 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 and crediting the violating owner with an amount equal
to the difference between the first purchase money mortgage and any
prior liens and costs of the enforcement proceedings, including legal
fees and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
(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 such time as title is conveyed from the owner.
