Township of Pequannock, NJ
Morris County
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Table of Contents
Table of Contents
The Fair Housing Committee of the Township of Pequannock entitled "Affordability Control" was established in part to provide residential zoning that provides for low and moderate-income housing. In implementing the control procedure and mechanisms to provide affordable housing as set forth in said Affordability Control Ordinance, the Township Council of the Township of Pequannock pursuant to Section 1C, established the Fair Housing Committee, hereinafter referred to as "FHC". Pursuant to Section 1C(E), the FHC was charged with promulgating rules and regulations to implement and maintain in the Township of Pequannock the affordability control standards and procedure as set forth in this Ordinance. The following rules and regulations are hereby adopted by the FHC and approved by the Pequannock Township Council.
The Fair Housing Committee (FHC) is appointed by the Township Council and is charged with the responsibility, among others, of establishing procedures and standards to be utilized in implementing the Township's affordable housing program.
The FHC also enforces and otherwise administers the provisions of this chapter. Its function is to oversee the developer's or owner's implementation of the rules and regulations and affordability controls. The developer is the entity which initially creates an affordable unit or units or assigns his or her interest to a subsequent person or entity and establishes procedures, application forms and other methodology for marketing and sales or rentals of set aside units which are submitted to the FHC for its review and approval as set forth in the FHC's Rules and Regulations, The owner is any person in possession and residing in an affordable dwelling unit who must, in transferring ownership, comply with the rules and procedures established herein. The function of the FHC can be more properly understood as an over-sight committee and a committee which administers, monitors, and reviews plans and procedures submitted by the developer or an owner of an affordable dwelling unit.
The FHC, however, is not without substantive powers as it is the FHC's responsibility to promulgate Rules and Regulations which will be utilized by the developer and owner of an affordable unit and to insure that affordability is maintained.
The responsibility of the FHC includes, but are not limited to, the following:
A. 
Assist the developer, owner or tenant association, in establishing procedures and standards in accordance with this Ordinance, for implementing the Affordability control mechanism.
B. 
The FHC shall hold meetings with any developer, owner or tenants association in insuring that there is compliance with the ordinances and will provide to said developer, owner or tenants association any data, or information which the FHC may deem to be helpful in accomplishing this purpose. The FHC may supply the developer, owner or tenants association with prior forms or documentation filed with the FHC by prior developers with the stipulation that any names will be deleted from said information.
C. 
Monitor affordability control compliance by developers, owner or tenant associations, fee owners, and other parties in interest, including compliance with deed restrictions and disposition covenants.
D. 
In connection with the first and subsequent occupancy of all set-aside sale and rental units, review and amend the approved price stabilization plan, review implementation of affordability control standards and procedures, and in its sole discretion, make recommendations for changes in procedures or exercise the right to disapprove occupancy for any and all set-aside sale or rental units in instances where eligibility is in question.
E. 
Thereafter, review and approve annual set-aside occupancy reports prepared and filed by the developer, association or any party in interest, as may be required by its practices and procedures, or as contained in its rules and regulations.
F. 
Promulgate rules and regulations subject to approval by the Township Council and implementation in ordinance form.
G. 
File periodical reports with the Township Council concerning the discharge of its responsibilities and immediately report non-compliance with affordability control standards and procedures for such actions as the Council may deem appropriate.
[Amended 5-25-2004 by Ord. No. 2004-18]
The following terms wherever used or referred to in this text of Rules and Regulations and Affordability Controls shall have the following meanings unless a different meaning clearly appears from the context:
A. 
Ownership expenses for principal, interest, taxes and insurance and condominium fees, excluding that part of the condominium fees, if any, relating to household interior maintenance shall not exceed 25% of the upper income limit for low or moderate-income households, as the case may be. In determining ownership expenses in terms of qualifying household size:
1 bedroom
=
a maximum of 2 person household
2 bedrooms
=
a maximum of 4 person household
3 bedrooms
=
a maximum of 6 person household
Generally, households will be referred to available units using the following standards for table occupancy: a maximum of two persons per bedroom; children of same sex in same bedroom; unrelated adults or persons of the opposite sex other than husband and wife in separate bedrooms; and children not in the same bedroom with parents.
B. 
Rental expenses for monthly contract rent, including utility charges, if any, shall not exceed 25% of the upper income limit for low or moderate-income households, as the case may be.
AGENCY
The Fair Housing Committee (FHC) of the Township of Pequannock, or any successor duly authorized to carry out the powers and responsibilities of the FHC. If no specific successor is duly established, the Agency for the purpose of implementing this plan shall be the Planning Board of the Township of Pequannock or its designee.
ASSOCIATION
An organization for the private ownership and maintenance of any open space, community buildings' amenities and improvements, including utilities, for the benefit of owners or residents of the development, whether or not such organization shall be controlled by the developer or homeowners.
HOUSEHOLD MEMBER
With the exception of children who reside or regularly visit a parent or parents, a resident of an affordable unit must establish legal residence in the affordable unit and must be an occupant of the unit for at least nine months of any year.
INCOME
The total gross annual income from all sources of all members of the household or family except income received by a family member (other than the family head, spouse, or foster children) who is under the age of 18 years or a full-time student of any age. Income includes, but is not limited to, compensation for employment services or wages, interest, or dividends from such assets as savings, CDs, money market, mutual funds, stocks, bonds, 401Ks, KEOGHs, pension benefits, and government benefits, such as unemployment compensation, welfare payments, social security, disability income, and AFDC, plus verified regular child support payments, alimony, commissions, regularly scheduled overtime, income from business or real estate and "Return on Assets Income" defined in J and K below.
INITIAL PRICE or SALES PRICE
The price of an affordable unit when it is for sale by a developer. This price is approved by FHC at the time of marketing plan approval and is subject to subsequent adjustments based on changes in COAH income data, real estate taxes, insurance, or interest rates with written approval of the FHC, said adjustments shall be made six months from the date of marketing plan approval and every six months thereafter.
INTEREST RATE
The developer, owner or tenant association will obtain mortgage rates and terms from three lenders licensed to do business in New Jersey, and willing to lend on affordable housing units. The average thirty-year fixed rate of these three lenders will be used in calculating unit selling prices. A mortgage cap of 10% will apply.
LOW INCOME HOUSEHOLDS
Are those whose income fall below 50% of the County of Morris median household income, adjusted for household size, as established periodically by the New Jersey Council on Affordable Housing (COAH).
MANDATORY SET-ASIDE
Is an inclusionary zoning device providing internally subsidized dwelling units for low and moderate-income households for rent or sale, as part of a development proposal.
MODERATE INCOME HOUSEHOLDS
Are those whose income fall between 50% and 80% of the County of Morris median household income, adjusted for household size, as established periodically by The New Jersey Council on Affordable Housing. (COAH)
NET FAMILY ASSETS
All monetary assets that do not currently earn income plus currently owned real estate and major personal items. Any real estate that does not produce income and that is currently owned or owned in part by the applicant shall be considered an asset to be counted in totaling net family assets. Personal items shall also be counted in this total. Personal items include resalable goods with a current market value greater than $5,000 such as automobiles/trucks, boats and recreational vehicles. Applicants owning real estate and major personal property must produce documentation of the current market value and/or outstanding mortgage/loan debt. The difference between the market value of these items and documented debt owed will be treated as the monetary value asset.
RESALE PRICE
The price at which an affordable unit is sold by an owner subsequent to the initial sale. This price is an adjustment to the initial price or the price paid by the owner. The maximum price shall provide for a percentage increase based on the change in the CPI Index. The percentage increase shall be 75% of the increase in the Consumer Price Index for Clerical Workers and Wage Earners (NY, NJ, CT) from the date of purchase to the date of resale.
sale price + [sale price
(CPI1 - CPI2).75]
100]
= resale price
RETURN ON ASSETS
The imputed value of income from assets. Income shall be imputed on net family assets which do not earn verifiable income. This value shall be determined by multiplying the value of the household's total Net Family Assets by 5%.
[Amended 5-25-2004 by Ord. No. 2004-18]
A. 
Phasing schedule. The developer shall submit a phasing schedule for the construction of an equal number of low and moderate-income units in each phase in accordance with the following:
Phase
Minimum Percent
Maximum Percent
Low/Moderate Income Total Units Completed
Low/Moderate Income Total Units Completed
I
0
20
II
20
40
III
45
60
IV
70
80
V
100
90
Market rate units set forth in the schedule shall not be occupied nor shall Certificates of Occupancy be issued for units other than units affordable to low and moderate-income households until all low and moderate-income units in the previous phase have been completed and sold or reserved for eligible persons.
B. 
Low and Moderate Income Housing Ratio. At least 10% of the total number of residential dwellings shall be made affordable and sold or rented to low income persons and 10% shall be made affordable and sold or rented to moderate income persons.
C. 
Bedroom distribution. At least 20% of the low-moderate-income units shall be three bedroom units, and no more than 50% shall be one bedroom units or efficiency units and the balance shall be two bedrooms.
D. 
Application fees. A developer shall require a $50 non-refundable application fee for each and every application submitted which shall be paid to the FHC be it for ownership or rental of a set-aside unit but there shall be no other fee paid as a finders or any other type of fee with regard to the initial rental or sale of a set-aside unit. A $250 refundable deposit may be required by the developer at the time of initial application for the purchase of a set-aside unit. Said deposit will be fully refundable in the event that a particular purchaser does not qualify for a unit or if no unit is available for a prospective purchaser, or if a prospective purchaser withdraws his/her application for any reason prior to entering a formal contract with the developer. In the event a formal contract is entered into, the $250 deposit will be applied toward the purchase price.
E. 
Forms. The FHC has developed an application form and a certification form which shall be utilized by the developer or owner. Applications shall include as a minimum, all information contained in Schedule A attached to these regulations. The application form is attached as Schedule B.
[Amended 5-25-2004 by Ord. No. 2004-18]
A. 
General. The developer shall formulate and submit a written affirmative marketing plan to the FHC at least 60 days prior to initial sales effort. The affirmative marketing plan shall be realistically designed to ensure that low-moderate income persons of all races and ethnic groups are informed of the housing opportunity in the development, feel welcome to seek to buy or to rent such housing and have the opportunity to buy or rent such housing.
B. 
Household Size. Unless the FHC finds reasons for matching unit size and household size according to a particular need, a one bedroom unit shall be sold or rented to a single person or a two person household, if these persons are a couple. A two bedroom unit shall be sold or rented to a two person household that is not a couple or a maximum four person household. A three bedroom unit shall be sold or rented to a three person household that has no couple or a maximum six person household. If the developer fails to find a household of appropriate size to match a particular size unit the FHC will consider matching the unit with a household of a smaller size.
C. 
Marketing Strategy and Procedure. At least 60 days prior to scheduled publication, the Developer [Owner] will submit for FHC approval all proposed advertising copy and brochures with a schedule of dates and publications as well as application forms, the pricing structure, the affirmative marketing plan, an outline of procedures, and any other related materials required by the FHC at the time of submission of the marketing plan.
D. 
FHC Approval-Marketing Plan Advertising Copy. The FHC shall approve/disapprove the marketing plan and materials within 30 days of receipt thereof.
E. 
Advertising Guideline. Advertisements shall be placed in appropriate newspapers designed to reach:
1. 
Lower income persons of all races and ethnic groups in municipalities in northeastern New Jersey that have higher than average proportions of blacks, Hispanics, or lower income households, and
2. 
Lower income persons of all races and ethnic groups who work in Morris County but do not live within the County.
F. 
Advertisement Content. Advertising at a minimum shall set forth:
1. 
The price of the units.
2. 
The essential economic data with regard to the price of the units.
3. 
The purchaser's income limits.
4. 
The estimated down payment required.
5. 
Proposed association fees, if any.
6. 
Estimated real estate taxes.
7. 
The number of units available.
8. 
When units will probably be available for occupancy.
9. 
Method of registration.
10. 
When registration will begin and close.
11. 
A telephone number of the developer so interested applicants can obtain further information.
12. 
Any other pertinent economic data with regard to the purchase of a unit.
G. 
Additional Information.
1. 
The Developer shall provide as part of the marketing plan and literature information in plain language regarding eligibility, criteria, income levels, documentation required for certification, application procedure, deed restriction, resale cap, mortgage availability and any other information that will facilitate the potential applicants understanding of the low-moderate housing program.
2. 
The Developer shall also make available, for interested persons, additional information or assistance as needed to facilitate a potential purchase.
[Amended 5-25-2004 by Ord. No. 2004-18]
A. 
General. No person shall be permitted to purchase or rent an affordable Housing Unit unless he/she qualifies as a Household of Low or Moderate Income.
B. 
Qualifications. Prospective purchasers or renters of Affordable Units must be certified as to having family income that is under the income limits established by the Council on Affordable Housing prior to purchase or rent as a Low or Moderate Income family. A low-income family is a family with income less than 50% of the annual median household income, with adjustments for family size, and a moderate-income family is a family with income between 50% and 80% of median income with adjustments for family size. These income limits, which are published and adjusted for household size by the Council on Affordable Housing shall be used in determining the applicant's eligibility.
A. 
The Initial Base Price. The initial base price is established such that the sum of the monthly payments for principal, interest, taxes, fire, theft, and liability insurance, and homeowner's association fees shall not exceed 25% of both the low and moderate income ceilings determined by taking 50 and 80%, respectively, of the median income adopted by COAH for Morris County. The calculation of the base price assumes a 10% down payment and a thirty-year mortgage term. The calculations are made utilizing the formula established by N.J.A.C. Title 5, Chapter 93, The Substantive Rules of the Council on Affordable Housing.
B. 
Discounted Sales Price. The base price shall be reduced by 10% for a portion of the units offered by each developer to increase the range of affordability to persons at lower income levels:
1. 
A minimum of 25% of the low and moderate income level units offered by a developer will be discounted. This percentage shall be increased in relation to the proportion of applicants at lower income levels in both the low and moderate income categories but this increase shall not exceed 50%. The relationship between the percentage of applicants at the lower income levels and the percentage of units to be discounted is set forth below:
Percentage of Applicants' Incomes Under 45% of Median
Percentage of Low Income Units to Be Discounted
0 to 25%
25%
25.1 to 40%
37.5%
40.1 to 100%
50%
Percentage of Applicants with Income Between 50.1% to 68.5% of Median
Percentage of Moderate Income Units to Be Discounted
0 to 25%
25%
25.1 to 40%
37.5%
40.1 to 100%
50%
The chart above, by requiring that a portion of both low and moderate income categories be discounted, creates four income levels and four price levels. These are level one and level two low income applicants and units and level one and level two moderate income applicants and units. If, for example, 28% of the applicants fall within the level one low income category (income under 45% of median), the developer must provide 37.5% of the low-income units at level one or discounted prices.
2. 
The proportion of applicants that fall into the lower end of both the low and moderate income categories shall be determined at the end of the application period on the basis of income representation made by applicants on their application forms.
3. 
The discount or reduction in price shall be applied to a variety of unit sizes (number of bedrooms) such that the kinds and numbers of units discounted matches the kinds and numbers of units offered by the developer.
4. 
Any discounted unit will be first made available to certified families within the low end of the low and moderate income categories set forth in the schedule above.
A. 
Rental expenses. The rental expenses for monthly contract rent, including utilities (gas, electric, water, oil), if any, shall not exceed 25% of the upper income limit for Low-Moderate Income Households, determined in accordance with paragraph B below.
B. 
Determining Rental Rate. For the purpose of determining the rental charges of any initially designated rental units or any unsold affordable units, the following formula shall be used.
Low income monthly rent = [0.25 (0.50 monthly median income)] - monthly utilities charges*
Moderate income monthly rent = [0.25 (0.80 monthly median income)] - monthly utilities charges*
*In calculating rent, the developer shall assume an average and reasonable utility cost for the unit size
C. 
Initially Designated Rental Units. If any Affordable Unit is designated initially as a rental unit, such Unit shall remain a rental unit for at least 15 years. After 15 years, they may be sold at prices affordable to Low-Moderate-income households, subject to such resale price controls as may be necessary to insure that the units continue to be affordable to moderate-income households in perpetuity.
D. 
Lease Requirements The developer, or landlord, shall obtain a lease which is signed by both the [landlord] developer and the tenant with regard to any rental. The lease shall contain at least the following requirements which shall be expressly made as part of the rules and regulations of the lease. The following requirements shall be made conspicuous to the prospective tenant:
1. 
Tenants are to be offered a lease of at least one year with a maximum of three years.
2. 
Tenants must be informed that they are to be initially certified as income eligible and that certification will last for a period of three years. At the end of three years, the tenant is to be re-certified as income eligible.
3. 
Tenants are to be specifically advised that if, at the time of re-certification, their income as further defined in the regulations, rises above the amount which would make them ineligible for low or moderate income rentals, then the tenant, as a condition of the lease term, agrees to vacate the unit within three months.
E. 
Vacate Premises/Eviction Notice. The Developer, if the tenant's income exceeds the allowable amount for low or moderate income rentals, after three years will not have the right to charge the fair market rent nor shall the tenant remain in the unit. If the tenant does not voluntarily vacate the unit, then eviction procedures shall be instituted by the developer. Failure on the part of the developer to initiate timely eviction action will result in penalties as set forth in this document against the developer. These eviction procedures shall take place in accordance with the procedure as set forth in New Jersey Landlord Tenant Statutes.
F. 
Rent increases. The Developer will be permitted to increase the rent annually providing that the monthly rent at no time exceeds the amount established per Section B above.
G. 
Reports.
a. 
The Developer shall submit all new leases and renewals to the Fair Housing Committee for approval prior to entering into a leasehold agreement.
b. 
Within 30 days of entering into any lease agreement, a signed copy of the lease shall be forwarded to Fair Housing Committee for record keeping purposes.
A. 
Denial Contested. If an applicant for a set-aside unit contests a decision of the developer with regard to submission of documents or other procedures with regard to the income qualification process, then that person shall make that grievance known both to the developer and FHC in writing within five days of the grievance. The developer shall communicate with the grievant and FHC either orally or in writing in an attempt to resolve the problem. However, if with the assistance of the FHC, the developer is not able to resolve the problem, satisfactory to the applicant, then the decision of the FHC shall be final and binding and non-appealable.
B. 
Return of Deposit. All monies deposited by the applicant with the developer shall be returned by the developer within 30 days.
A. 
Availability of Application. The Developer shall prepare and make available for pickup at the business office of the Developer, copies of the Application for Certification as a Qualified Purchaser or Renter.
B. 
Application Process Plan The developer shall prepare a plan to be submitted with the Market Plan for Fair Housing Committee approval, for accepting applications, notifying applicants, certifying applicants, and insuring that applicants are matched to appropriate units. This plan shall make provisions for the following criteria and procedures.
1. 
The developer shall establish a "window" or time frame for the application process. The FHC shall be advised of the date when advertising begins and when materials will be made available as well as the date after which no application will be accepted.
2. 
When the advertising period begins and at least four weeks prior to the end of the period when applications are accepted, all persons who have expressed an interest or are on the interested persons list shall be notified in writing of the pending application deadline.
3. 
When the period for receipt of applications is over, the developer will sort all applications into categories to facilitate a match between income and price of units, family size and composition and number of bedrooms. The application sorting process shall be accomplished so that persons in the same income category and requiring the same bedroom mix are grouped together and are then prioritized according to the date the application was received.
4. 
Facilitating the match between applicant and appropriate unit.
a. 
In any case where the number of appropriate candidates for a particular unit or category of units exceed the number of units available, the developer shall choose five households based on the order in which the applications were received for each unit in the particular category in question. These households will then be certified. After certification, the household with the earliest application date shall be the first to be offered a unit and the household with the next earliest application date shall be the second offered the unit, etc., until all certified applicants have been given the opportunity to purchase. Should none of this group accept the offer or qualify for a mortgage, the developer shall repeat the process by certifying another group of five for each unit available until all units are filled.
b. 
In cases where the number of units exceed the number of appropriate candidates, a suitable candidate from another category must be sought. A level two low or moderate income applicant shall be a suitable candidate for a level one low or moderate-income unit. If no suitable applicant is available, the developer shall reopen the application period and conduct a similar marketing plan until such time as the unit is filled.
5. 
A certified applicant that has been offered an appropriate unit shall have five days to respond to the offer and enter into a contract for purchase. If no response is received within five days, or if the applicant declines the offer, the developer will be free to offer the unit to another appropriate applicant next in line as determined by the date the application was received.
6. 
The Developer shall provide qualified applicants with information regarding the procedures in obtaining a mortgage. This procedure shall include providing information concerning the New Jersey Housing and Mortgage Finance Agency (NJHMFA). The booklet provided by NJHMFA, if made available to applicants by the Developer, shall meet this obligation.
7. 
The Developer shall, when developing forms, procedures and schedules, comply with guidelines as set forth in the Affordability Control Ordinances of the Township of Pequannock and the Affordability Control Regulations as developed by the Fair Housing Committee.
8. 
The application form shall contain data set forth in Schedule A, attached hereto.
9. 
The Developer may request any additional information from the applicant which is not required by the Application Form but which is deemed by the Developer to be necessary to determine whether the applicant meets the eligibility criteria of a qualified purchaser or renter. The Developer shall allow an applicant reasonable time of not less than 14 days nor more than 21 days to comply with such a request for additional information and, if necessary, shall delay the offering period until all certifications necessary to comply with procedures outlined above are complete.
C. 
Review of Application. The Developer shall initiate the Certification process and grant or deny Certification as described above within a reasonable period of time after the application process is closed. The Developer may conduct on-site inspections to confirm statements and information given by the applicant regarding housing conditions. If the decision of the Developer is to deny Certification, the Developer shall notify the applicant in writing of the denial and the reasons for the decision. If the decision of the Developer is to grant a Certification, a copy of such Certification shall be sent to the applicant.
[Amended 5-25-2004 by Ord. No. 2004-18]
A. 
Contents of Certification. A certification as a qualified purchaser or renter shall contain the following documentation:
1. 
A completed application.
2. 
The total amount of income.
3. 
Written documentation of all information provided on application.
4. 
A statement regarding whether the applicant qualifies as a level one or level two low income or level one or level two moderate income purchaser and the basis of such classification.
5. 
The size of unit, household size and composition.
6. 
A statement regarding the applicant's compliance with FHC rules and regulations.
7. 
The notarized signature of the certifier.
B. 
Validity of Certification shall be made in affidavit form, subject to penalty for perjury, and personally signed by the developer, or, in the case of a corporation, the principal stockholder(s), or, in the case of a partnership, the general or principal partner. Certification made by an association shall be signed by the President or chairperson of the Board of trustees.
C. 
Review of Certification by FHC. Each developer shall provide all certification documentation to the FHC for all prospective purchasers and renters not less than 10 days prior to a fully executed sales contract or binder or lease application or agreement, and, not less than 35 days prior to occupancy.
D. 
Notification of Certification. A notice of certification and a letter describing follow-up procedures shall be sent to the prospective purchaser or renter at the address specified on the application certified mail. This letter shall contain an explanation of the five day response period, how the response shall be made, the interested persons list that is applicable, and any additional information about the availability of sales people who will facilitate the response.
E. 
Duration of Certification. A certification shall be valid for one year and may be utilized to demonstrate eligibility for any affordable housing program within the Township of Pequannock. A certification may be renewed if the original certifier finds that there is no change in income or information or if there is a change in income or information that the change does not impact eligibility and the certifier attests to this fact by affidavit and subject to the same penalties as attached to the original certification. In renewing a certification, a developer or association may request any additional information from the applicant deemed necessary to determine whether the applicant continues to meet the eligibility criteria of a qualified purchaser or renter.
F. 
Revocation of Certification. A certification may be revoked by the Developer upon evidence of (1) false, misleading or incomplete statements or information submitted in an Application for Certification or an Application for Renewal of Certification; (2) a change in the household income of applicant prior to the purchase or rental of housing such that the income level of the applicant would no longer meet the eligibility criteria of a qualified occupant; (3) criminality or immorality on the part of the applicant. The Developer shall notify the applicant in writing of such revocation of Certification.
A. 
Initial Report. Prior to the sale of the first unit in any phase or offering, the developer shall file with the FHC an initial report which includes the following information:
1. 
An affidavit attesting to compliance with the approved marketing plans and application process plan.
2. 
A list of all applicants arranged according to unit size classification, priority status, family size, and income.
3. 
A report indicating the percentage of applicants that fall into the income categories established for the purpose of determining the number of units to be offered at a discounted sales price.
B. 
Summary Report. Within 30 days of the close of the selling period, for any phase of a development, the developer shall file with FHC a summary report containing the following information and supporting documentation.
1. 
A list of all certified applicants and the date of the certification.
2. 
A list of all applicants who were found not to qualify. This list should be supported by application forms and certification materials.
3. 
A list of all unit purchasers.
4. 
A copy of a letter mailed to all potential purchasers notifying them of the close of the selling period and their status with respect to any future selling period or waiting list.
5. 
A list of applicants, who in the opinion of the developer, should be advised of any resales or kept on an interested persons list to be notified of any subsequent application period.
C. 
The FHC may require additional reports as needed to monitor the developer's progress and fair marketing program.
[Amended 5-25-2004 by Ord. No. 2004-18; 12-28-2010 by Ord. No. 2010-32; 6-11-2013 by Ord. No. 2013-11]
A. 
No owner of a fee title affordable housing unit shall lease his or her unit for any period of time. The fee title affordable unit must be owner occupied.
B. 
No tenant in a regulated rental unit shall sublease his or her unit for any period of time. The affordable rental unit must be occupied by an approved, qualified tenant.
C. 
Unit owners may not own or have an ownership interest in any other real estate while owning an affordable unit. An exception to this rule may be granted on application to the FHC for good cause under extenuating circumstances.
D. 
The FHC will require a report annually from each owner of an affordable unit verifying that the owners of record are all residents of affordable units at the time the certification is requested. The owner will be required to provide residency verification for all members of the household over the age of 18 with a copy of their driver's license verifying their address in the fair housing unit or alternate verification by other documentation approved by the FHC. The failure to complete the verification within 30 days from the date shown on the letter from the FHC shall constitute a violation of the ordinance.
[Amended 5-25-2004 by Ord. No. 2004-18]
A. 
Deed restrictions. Deed restrictions or disposition covenants in recordable form, satisfactory to the Township Attorney, shall restrict fee or leasehold disposition of all set-aside units in perpetuity. A copy of this restriction is attached as Schedule A.
B. 
Sale price restrictions. Restrictions or covenants shall provide that the sale price may not exceed the original price as inflated by 75% of the increase of the CPI for Clerical Workers and Wage Earners utilized as a rate of increase plus amounts allowed by the FHC in accordance with this chapter. The sale price may be lower than the original price inflated as per above as agreed to between the parties.
C. 
Certification of the purchaser:
1. 
No person, family, or household shall purchase an affordable unit unless it is certified that the household meets the income limits established by the Council on Affordable Housing. Certification of a household demonstrating that it is qualified to purchase shall be completed by an individual who is approved by the FHC to act as a certifier and shall contain the following documentation:
(a) 
A completed application.
(b) 
The total amount of income.
(c) 
Written documentation of all information provided on the application.
(d) 
A statement regarding whether the applicant qualifies as a low income or moderate income purchaser or renter.
(e) 
The size of unit, household size and composition.
(f) 
The completion of the certification form by the certifier.
2. 
Review of certification by FHC. Each owner shall provide all certification documentation to the FHC for all prospective purchasers not less than 35 days prior to the completion of the sale transaction or closing.
3. 
Duration of certification. A certification shall be valid for 90 days. At the time of closing on an affordable unit, an applicant must certify as to the accuracy of the information contained in the certification.
4. 
Revocation of certification. A certification may be revoked by the FHC upon evidence of false, misleading, incomplete statements or false information submitted in an Application for Certification.
D. 
Additional resale restrictions: The low-income units upon resale may be sold only to low income persons, and the moderate-income units may be sold to low or moderate income purchasers.
(1) 
If no low income purchaser is found for a low-income unit or if no moderate income purchaser is found for a moderate-income unit within 10 months of being offered for sale, the owner shall notify the FHC by certified mail of the inability to sell the unit to the appropriate purchaser.
(2) 
Upon receipt of such notice, the option to buy the unit, at the sales price as defined in these Rules and Regulations or at a lower price agreed to between the parties shall be available for 120 days to the Township of Pequannock. The FHC shall notify the Township of Pequannock, the Department of Community Affairs, or qualified nonprofit Agency that the unit is for sale. If the Township of Pequannock exercises its option, it may enter into a contract of sale. If the Township of Pequannock fails to exercise this option within 120 days, the first of the other entities giving notice to the seller of its intent to purchase during the one-hundred-twenty-day period, shall be entitled to purchase the unit. Any Option to buy a housing unit of the Township, the Department of Community Affairs or qualified nonprofit Agency shall be exercised by certified mail and shall be deemed exercised upon mailing.
(3) 
If the Option to purchase the unit at the sales price or price agreed to between the parties is not exercised by a written offer to purchase the housing unit within 120 days of receipt of notice of the inability to sell the unit to the appropriate purchaser, the owner may proceed to sell the housing unit.
(4) 
If the Township of Pequannock elects to purchase a low or moderate-income unit it may: (a) convey or rent the housing unit to a low or moderate income purchaser or tenant at a price or rent not to exceed the allowable sales price or rent, or, (b) convey the unit at Fair Market Value subject to the following provisions:
(a) 
Notify the FHC of any proposed sale and sales price 90 days before closing;
(b) 
Notify the FHC of the price differential as defined in N.J.A.C. 5:92-1.3, the Council on Affordable Housing's Procedural and Substantive Rules;
(c) 
Deposit the price differential in a trust account devoted solely to the creation, rehabilitation or maintenance of low and moderate-income housing; and,
(d) 
Notify the FHC by February 1 of each calendar year of the balance within this trust account;
(e) 
Money deposited in trust accounts may not be expended until the municipality submits and the FHC approves a repayment housing plan and the Township of Pequannock and the FHC may approve the repayment housing plan if it determines that it provides realistic opportunity for the creation, rehabilitation or maintenance of low or moderate-income housing.
(5) 
When the Department of Community Affairs or agency elects to purchase a low or moderate-income unit, it may (a) convey or rent the housing unit to a low or moderate-income housing purchaser or tenant at a price or rent not to exceed the allowable sale price or rental or (b) convey the unit at Fair Market Value and utilize the price differential to subsidize the construction, rehabilitation or maintenance of low and moderate-income housing within the Township of Pequannock subject to the restrictions set forth in No. 4 above.
(6) 
Nonprofit agencies may apply to the FHC at any time for the right to purchase low or moderate-income units subsequent to the period of controls and affordability in perpetuity. Nonprofit agencies that have been designated by COAH shall be eligible to purchase low or moderate-income units for the sole purpose of conveying or renting the housing units to a low or moderate income purchaser at a price or rent not to exceed the allowable sales price or rental. Low-income units shall be made available to low income purchasers or tenants and the housing units shall be regulated by the restrictive covenant and lien adopted by the FHC.
(7) 
At the termination of the Option Period an eligible seller of the low or moderate-income unit who has provided Notice of the Inability to Sell the Unit to the appropriate purchaser, may proceed with the sale if no eligible entity as outlined above exercises its Option to purchase within 120 days.
(8) 
Repayment Option - At the end of the Option Period the Seller may elect to (a) sell to a qualified low and moderate-income household at the controlled unit sales price in accordance with existing FHC rules providing the unit is regulated by the restrictive covenant and lien adopted by the FHC in perpetuity up to 30 years; or, (b) exercise the repayment option and sell to any purchaser at market price providing that 100% of the price differential is paid to the FHC, as the instrument of the municipality at the closing.
(a) 
If the sale will be to a qualified low and moderate-income household, the FHC shall certify the income qualifications of the purchaser and shall insure the housing unit is regulated by the restrictive covenant and lien required by the FHC.
(b) 
The FHC shall examine any contract of sale containing a repayment option to determine if the proposed sale price bears a reasonable relationship to the housing unit's Fair Market Value. In making this determination, the authority may rely on Comparable sales data or an appraisal. The FHC shall not approve any contract of sale where there is a determination that the price does not bear a reasonable relationship to Fair Market Value. The FHC shall make a determination within 35 days of receipt of the contract of sale and shall determine payment to the Seller. The FHC shall adopt an Appeal procedure by which a Seller may submit written documentation requesting the authority to re-compute the repayment obligation if the Seller believes that a sales price does not bear reasonable relationship to the Fair Market Value. A repayment obligation determination made as a result of an owner's appeal shall be a final administrative determination of the authority of the FHC. The repayment shall occur at the date of closing and transfer of title for the first non-exempt transaction after the expiration of the controls on affordability. Repayment proceeds shall be deposited in a trust account devoted solely to the creation, rehabilitation and maintenance of low and moderate-income housing. Money deposited in trust accounts may not be expended until the Township of Pequannock submits and the FHC approves a repayment housing plan. The FHC may approve the repayment housing plan if it determines that it provides a realistic opportunity for the creation, rehabilitation or maintenance of low and moderate-income housing.
(c) 
The Township of Pequannock shall have the right to determine that the most desirable means of promoting an adequate supply of low and moderate-income housing is to prohibit the exercise of the repayment option and maintain controls on lower income housing units sold within the municipality. Such determination shall be made by resolution of the municipal governing body and shall be effective upon filing with the FHC. The resolution shall specify the time period for which the repayment option shall not be applicable. During such period, no seller in the municipality may utilize the repayment option.
(9) 
If the Township of Pequannock exercises the option outlined in "c" above, it shall (a) provide Public Notice in a newspaper in general circulation and (b) notify the FHC of its governing body's action. The FHC shall insure that the deed restriction on all restricted housing units shall have the extended period of controls.
(10) 
The covenants, conditions and restrictions set forth in this section shall be effectuated by means of the documents contained in the Schedules.
[Amended 4-30-1999 by Ord. No. 99-4; 5-25-2004 by Ord. No. 2004-18; 12-22-2009 by Ord. No. 2009-31; 12-28-2010 by Ord. No. 2010-32; 6-11-2013 by Ord. No. 2013-11]
A. 
The Fair Housing Committee shall be advised in writing of an owners desire to sell an affordable unit and be provided with a copy of the unit owner's deed. The date that the letter is received by the Fair Housing Committee shall constitute the "Notice of Intent to Sell the Unit."
B. 
Upon receipt of the "Notice of Intent to Sell Unit" accompanied by a fee in the amount of $150 the Fair Housing Committee shall notify the owner of the maximum resale price established by following the mechanism developed by State regulation. The Committee will also provide the owner with a list of three purchasers from the waiting list. The owner may only contract to sell the unit with an individual whose name appears on the list obtained from the Committee who becomes certified as meeting the qualifications for purchasing an affordable unit. In the event all individuals on the waiting list do not meet the qualifications or decline to enter into a contract to purchase the property, the owner may request a new list. In the event that the Committee is unable to provide a list because there are no applicants who have submitted an "Interested Person Questionnaire" in the category requested, or in the event that the owner is unable to enter into a contract after exhausting the available lists, the owner may apply to the Committee to sell the unit to a qualified individual not on the waiting list provided the individual submits all required documentation and is approved by the Committee.
C. 
An individual who desires to be included on the list for an affordable unit must complete an "Interested Person Questionnaire" and meet the qualifications established by the Fair Housing Committee for inclusion on that list. An individual will be placed on the waiting list for resale purchases upon approval by the Fair Housing Committee. A prospective purchaser will be matched to the unit size according to the formula established by State regulation. The Fair Housing Committee may approve a sale outside of the State formula if necessary to find a qualified purchaser or under exigent circumstances at the discretion of the Committee.
D. 
The Fair Housing Committee will maintain a purchaser's waiting list which will include the date in which a complete "Interested Person Questionnaire" has been received. The list to be provided to unit owners seeking to resell their unit will contain three names chronologically listed by the earliest date of approval in the relevant category.
E. 
The seller is responsible for obtaining a copy of the Fair Housing Committee's Affordability Controls and complying with same. The seller shall also advise the perspective purchaser of the restrictions placed on an affordable unit and provide the purchaser with a copy of these same Affordability Controls. The seller must also provide the Fair Housing Committee with a copy of the Public Offering Statement which the Committee will provide to the purchaser once approved. At the closing of an affordable resale, the purchaser must certify as to the continued accuracy of the information contained in the certification.
F. 
After the owner has entered into a contract with a prospective buyer, the buyer will be provided with a Buyer's Packet ("Packet") from the Fair Housing Committee and must submit the Packet for approval of the sale. The buyer shall submit the $50 application fee with the completed Packet. The Packet will not be reviewed without transmittal of the fee. The prospective purchaser must forward the completed Packet at least two weeks prior to the schedule Fair Housing Committee meeting in which they wish the Packet to be reviewed. The Packet will only be considered when the prospective purchaser attends the meeting and provides the information necessary for the Committee to determine compliance with purchase requirements.
G. 
The Fair Housing Committee may permit a unit owner to refinance a mortgage on their property if the following conditions are met:
(1) 
The Owner must obtain, complete and file with the Fair Housing Committee the refinancing procedure for unit owners.
(2) 
Upon filing of a complete application for refinance, the Fair Housing Committee will provide the maximum allowable selling price.
(3) 
The total amount financed may not exceed 80% of the recalculated maximum selling price.
H. 
Fees received by buyers and sellers under this section shall be nonrefundable.
[Amended 5-25-2004 by Ord. No. 2004-18]
The interest of any Owner, may at the option of the FHC, be subject to forfeiture in the event of substantial breach of any of the terms, restrictions and provisions of this Plan which remains uncured for a period of 60 days after service of written Notice of Violation upon the Owner by the FHC.
The Notice of Violation shall specify the particular infraction and shall advise the Owner that his or her interest may be subject to forfeiture if such infraction is not cured within 60 days of receipt of the Notice. The provisions of this paragraph will be enforced by the Zoning Officer of Pequannock Township and/or by court action seeking a judgement which would result in the termination of the Owner's interest in the unit. Any judgement shall be enforceable as if same were a judgement of default of a First Purchase Money Mortgage and shall constitute an encumbrance against the Affordable Unit. Such judgement shall be enforceable at the option of the FHC, by means of an execution of sale by the Sheriff at which the Affordable Unit shall be sold at a sales price as determined in accordance and consistent with the resale provisions of this plan and which is not less than the amount necessary to fully satisfy and pay off any First Purchase Money Mortgage and prior liens and costs of the enforcement proceedings including attorney's fees. The violating owner shall have his/her right to possession terminated as well as his title conveyed pursuant to the Sheriff's sale. 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 Affordable Unit. The excess, if any, shall be applied to reimburse the FHC for any and all costs and expenses incurred in connection with either the court action resulting in the judgement of violation or the Sheriff's Sale. In the event that the proceeds from the Sheriff's Sale are insufficient to reimburse the FHC in full as aforesaid, the violating Owner shall be personally responsible for and to the extent of such deficiency, in addition to any and all costs, including but not limited to attorney fees, incurred by the FHC in connection with collecting such deficiency. In the event of a surplus, the balance if any, shall be paid to the FHC. Title shall be conveyed to the purchaser at the Sheriff's Sale subject to the restrictions and provisions of this Plan. The Owner determined to be in violation of the provisions of this Plan and from whom title has been divested by means of the Sheriff's Sale shall not be entitled to any right of redemption. If there are no bidders at the Sheriff's Sale, of if insufficient amounts are bid to satisfy the First Purchase Money Mortgage and any prior liens, the FHC may acquire title to the Affordable Unit pursuant to the Rules and Regulations. Failure of the Affordable Unit to be either sold at the Sheriff's Sale or acquired by the FHC shall obligate the Owner to, either convey title of the Owner until such time as the FHC can convey title to a Qualified Purchaser in accordance with this Plan, or accept an offer to purchase from any Qualified Purchaser, which may be referred to the Owner by the FHC, with such offer to purchase being equal to the maximum sales price of the Affordable Unit as permitted by the terms and provisions of this Plan. The Owner shall remain fully obligated, responsible and liable for complying with the terms and restrictions of this Plan until such time as title is ultimately conveyed to a Qualified Purchaser.
The provisions of this Plan shall constitute covenants running with the land with respect to each Affordable Unit affected hereby, and shall bind all purchasers of each such Unit, their heirs, assigns and all persons claiming by, through or under their heirs, executors, administrators and assigns. The terms, restrictions, and covenants of this Plan shall continue in perpetuity except that this Plan shall expire; (1) in the event of a foreclosure as set forth in these Rules and Regulations, or (2) if there is a substantial destruction of an affordable unit or units and the property owner or Association elects not to rebuild. In the case of substantial destruction, instruments and documents evidencing said destruction and the intent not to rebuild pursuant to the Master Deed must be duly recorded with the Office of the Clerk in Morris County. The terms, restrictions and covenants of this Plan shall, however, automatically expire and terminate at the earliest of the following: (1) 30 years from the date of recording this Plan; or (2) the date upon which the event set forth in these Rules and Regulations hereinafter shall occur; or (3) the date upon which the Association dissolves after an election not to rebuild pursuant to the Master Deed or ceases to exist as a result of a total or substantial destruction of the buildings and common elements caused by fire or their casualty for any period of time in which case, an instrument executed by the Association evidencing same must be duly recorded with the Office of the Clerk of Morris County.
Notice of Foreclosure shall allow the municipality, the Department of Community Affairs or Agency or a qualified nonprofit to purchase the affordable housing unit at the allowed sales price and maintain it as an affordable unit for the balance of the intended period of controls. Failure to purchase the affordable housing unit shall result in the adding of the unit to the municipal present and prospective fair share obligations. Failure of the first mortgagee to provide notice of a foreclosure action to the FHC shall not impair any of the first mortgagee's rights to recoup loan proceeds; shall not negate the extinguishment of controls of the validity of the foreclosure; and shall create no cause of action against the first mortgagee.
The Owner of an Affordable Unit shall not permit any lien, other than the First Purchase Money Mortgage, to attach and remain on the property for more than 60 days. The Owner of an Affordable Unit shall keep the unit in good repair and shall not commit waste thereon. The Owner shall pay all taxes and public Assessments and Assessments by the Association levied upon or assessed against the unit, or any part thereof, as and when the same become due and before penalties accrue. This Affordable Unit is part of a larger complex together with appurtenances thereto. The Owner, in addition to paying any applicable Association assessments as may be described in the Master Deed shall further fully comply with all of the terms, covenants or conditions of said Master Deed, as well as fully comply with all terms, conditions and restrictions of this Plan.
The Agency may, at its option, advance and pay all sums necessary to protect, preserve and retain the unit as an Affordable Unit subject to the terms of this Plan. All sums so advances and paid by the Agency shall become a lien against such unit and shall have a higher priority than any lien except the First Purchase Money Mortgage lien and liens by duly authorized government agencies. Such sums may include, but are not limited to, insurance premiums, taxes, assessments (public or private) and liens which may be or become prior and senior to any First Purchase Money Mortgage as a lien on the Unit, or any part thereof. In the event any First Mortgagee or other creditor of an Owner of an Affordable Unit exercises its contractual or legal remedies available in the event of default or non-payment by the Owner of an Affordable Unit, the Owner shall notify the Agency in writing within 10 days of such exercise by the First Mortgagee or creditor and not later than 10 days after service of any summons and complaint and the Agency shall have the option to purchase, redeem, or cure any default upon such terms and conditions as may be agreeable to all parties in interest and/or to acquire the First Purchase Money Mortgage to the Unit, thereby, replacing the First Mortgagee as the First Mortgagee of the Unit. The Agency shall have the same priority of lien as was held by the First Mortgagee at the time the Agency acquires such First Purchase Money Mortgage, and shall have the right of subrogation with respect to any other claim or lien it satisfies or acquires.
[Amended 5-25-2004 by Ord. No. 2004-18]
A. 
The terms and restrictions of the Plan shall be subordinate only to the First Purchase Money Mortgage lien on any Affordable Unit and in no way shall impair the First Mortgagee's ability to exercise the contract remedies available to it in the event of default as such remedies are set forth in the First Purchase Money Mortgage documents for the Unit. So long as the First Purchase Money Mortgage is not sold to the Federal National Mortgage Association or in the secondary mortgage market, the First Mortgagee and/or mortgage servicer shall serve written notice upon the Agency within 10 days after the First Purchase Money Mortgage is three months in arrears, and again within 10 calendar days of the filing of the complaint seeking foreclosure of the First Purchase Money Mortgage held on an Affordable Unit.
B. 
The obligation of the First Mortgagee and servicer to notify the Agency shall cease automatically and immediately upon the sale of the First Purchase Money Mortgage to the Federal National Mortgage Association or in the secondary mortgage market unless the rules and regulations or guidelines of the Federal National Mortgage Association are amended so as to not prohibit or exclude placing such obligation upon the holder of the mortgage or its service representative, in which case, an instrument duly evidencing same must be recorded with the Office of the Clerk of Morris County, New Jersey, before any such obligation shall exist. Provided that the First Mortgagee is obligated to give the Agency the above mentioned notices, the First Mortgagee shall also serve written notice of any proposed foreclosure sale upon the Agency at least 30 days of the sale of the First Purchase Money Mortgage to the Federal National Mortgage Association or in the secondary mortgage market.
C. 
The Township of Pequannock and/or the Agency or any instrumentality designated by the Township shall have the right to purchase any mortgage which is in default at any time prior to the entry of a foreclosure judgement, or within the redemption period thereafter. Notification of a default and of the institution of a foreclosure action and of a Sheriff's sale shall be served in writing upon the Township Clerk as aforesaid. The Township of Pequannock shall at all times be considered a party in interest and shall have the right to intervene in any foreclosure action seeking foreclosure of a first mortgage and/or shall have the right to redeem and acquire the owner's equity of redemption or to acquire the unit from the Owner upon such terms and conditions as may be determined by the Agency.
D. 
The FHC may permit a refinance if the following conditions are met:
(1) 
The Owner must obtain and complete and file with the FHC the refinancing procedure for unit owners.
(2) 
Upon filing of a complete application for refinance, the FHC will provide the maximum allowable selling price.
(3) 
The amount financed may not exceed the recalculated maximum selling price.
(4) 
The refinanced mortgage must include Schedule A.
In the event of a Foreclosure sale by the holder of the First Purchase Money Mortgage, the Owner shall be personally obligated to pay to the Agency any surplus funds. For purposes of this paragraph, surplus funds shall be the total amount paid to the Sheriff in excess of the amount required to pay and satisfy the First Purchase Money Mortgage, including the costs of foreclosure, even if junior creditors actually receive payment from said surplus funds to the exclusion of the Owner. The Agency is hereby given a first priority lien, second only to the First Mortgagee of a Unit and any taxes or public assessments by a duly authorized governmental body, equal to the full amount of surplus funds. This obligation of the Owner to pay this full amount to the Agency shall be deemed to be a personal obligation of the Owner of record at time of the Foreclosure Sale and the Agency is hereby empowered to enforce the obligation of the Owner in any appropriate court of law or equity as though same were a personal contractual obligation of the Owner. Neither the First Mortgagee nor the purchaser at the Foreclosure Sale shall be responsible or liable to the Agency for any portion of this excess.
[Amended 5-25-2004 by Ord. No. 2004-18]
A. 
The Affordability Control Ordinance requires that there is an interested person list. The purpose of the interested person list is twofold; first, it is to provide a list of names to help ensure that future sales of each individual unit will proceed timely and smoothly; second, is to provide a mechanism to prevent the loss of set-aside units in the Township. The FHC, subject to the following shall supply the developer and/or owner of an individual unit with this list of individuals who have at one time been interested in the purchase or a rental of an affordable unit. The FHC does not warrant or guarantee that the individuals are certified at the time when the list is given to any owner.
B. 
In order to ensure that the list is as current as possible, each developer shall provide to the FHC a full and complete list of all applicants who applied for low and moderate-income housing with regard to any development. Each developer shall also keep the FHC appraised of any individual who is found to be qualified as well as whether that individual has contracted for purchase of a unit.
C. 
Each developer, before turning over the power and control to any association or other party in interest shall also appraise the FHC of any new applicants or individuals who have expressed an interest in obtaining a set-aside unit. The FHC shall also maintain a list of the names and addresses of individuals who have expressed an interest to the FHC or any other official within the Township with regard to future occupancy of a set-aside unit. The list of individuals who have qualified as income eligible by a previous developer, but have not purchased a unit, shall be utilized by a developer after he has used all reasonable means and has exhausted marketing approaches with regard to the sale and/or rental of a unit.
In the event the developer is unable to interpret or adhere to the rules and regulations and by-laws of the Fair Housing Committee, he should be permitted to file a written application for relief as to the specified section under which he requests an interpretative ruling by the FHC.
[Amended 5-25-2004 by Ord. No. 2004-18]
Schedule A is attached.
[1]
Note: Said Schedule is on file in the Township offices.
[Amended 5-25-2004 by Ord. No. 2004-18]
Schedule B is attached.
[1]
Note: Said Schedule is on file in the Township offices.
[Amended 5-25-2004 by Ord. No. 2004-18]
Seller's Notarized Form is attached.
[1]
Note: Said form is on file in the Township offices.
[Added 5-25-2004 by Ord. No. 2004-18]
Buyer's Notarized Form is attached.
[1]
Note: Said form is on file in the Township offices.
[Added 5-25-2004 by Ord. No. 2004-18]
A. 
The failure to comply with any provisions contained in this chapter or the failure to comply with an order of the Fair Housing Committee issued under the authority of this chapter shall be deemed in violation of this chapter.
B. 
The FHC reserves the right to notify regarding a failure to comply with provisions contained in this chapter and this will be deemed a violation. Written notification of the violation with proof of corrected measures by the owner must be returned within 60 days.
C. 
The penalty for a violation of this chapter or any supplement or addition thereto for which no specific penalty is provided shall be a term of imprisonment in the County jail for a term not exceeding 90 days or by a fine not less than $100 nor exceeding $1,000, or by a period of community service not exceeding 90 days.
D. 
Any person who is convicted of violating this chapter within one year of the date of a previous violation of this chapter and who was fined for the previous violation, shall be sentenced by the Court to an additional fine as a repeat offender. The additional fine imposed by the Court upon a person for repeated offense shall not be less than the minimum or exceed the maximum fine-fixed for a violation of this chapter, but shall be calculated separately from the fine imposed for the violation of the ordinance.
E. 
The Court before which any person is convicted of violation this chapter shall have the power to impose any fine, term of imprisonment, or period of community service no less than the minimum and not exceeding the maximum.
[Added 9-13-2005 by Ord. No. 2005-19; amended 3-28-2006 by Ord. No. 2006-05]
A. 
Definitions. As used in this article, the following terms shall have the meanings indicated:
COAH
The New Jersey Council on Affordable Housing.
DEVELOPMENT FEES
Money paid by an individual, person, partnership, association, company or corporation for the improvement of property as permitted by COAH rules.
EQUALIZED ASSESSED VALUE
The value of a property determined by the Municipal Tax Assessor through a process designed to ensure that all property in the municipality is assessed at the same assessment ratio or ratios required by law. Estimates at the time of issuance of a building permit may be obtained utilizing estimates for construction cost. Final equalized assessed value will be determined at project completion by the Municipal Tax Assessor.
SUBSTANTIVE CERTIFICATION
A determination by COAH approving a municipality's housing element and fair share plan in accordance with the provisions of the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., and the regulations promulgated thereunder.
B. 
Purpose; establishment; exemptions; collections; deposit; expenditure; monitoring; expiration.
1. 
Purpose. The purpose of this section is to establish standards for the collection, maintenance and expenditure of development fees in accordance with COAH's regulations. Fees collected pursuant to this article shall be used for the sole purpose of providing low- and moderate-income housing. This article shall be interpreted within the framework of COAH's regulations on development fees.
2. 
Residential development fees. All developers of residential housing, except those provided in Subsection B(5), shall pay a development fee of 1% of the equalized assessed value for each residential unit to be constructed.
3. 
Nonresidential development fees. Developers of nonresidential uses shall pay a fee of 2% of equalized assessed value of the nonresidential development to be constructed.
4. 
Bonus development fees as a result of a "d" variance, N.J.A.C. 5:93-8.10 and 8.11.00.
(a) 
Residential development fees. If a "d" variance is granted pursuant to N.J.S.A. 40:55d-70D(5), then the additional residential units realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of 6% of the equalized assessed valuation rather than the development fee of 1%. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" variance application, the 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 "d" variance application.
(b) 
Nonresidential development fees. If a "d" variance is granted pursuant to N.J.S.A. 40:55D-70d(4), then the additional floor area realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of 6% of the equalized assess valuation rather than the development fee of 2%. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" variance application, the 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 "d" variance application.
5. 
Eligible exaction, ineligible exaction and exemptions.
(a) 
Affordable housing developments shall be exempt from development fees. All other forms of new construction may be subject to development fees.
(b) 
Development fees shall be imposed and collected when an existing structure is expanded or undergoes a change to a more intense use. The development fee that will be imposed and collected shall be calculated on the increase in the equalized assessed value of the improved structure.
(c) 
Developments that have received preliminary or final approval prior to the imposition of a municipal development fee shall be exempt from development fees unless the developer seeks a substantial change in the approval.
(d) 
Churches, synagogues, parish houses and not-for-profit education, cultural and other charitable organizations incorporated under Title 15A of the New Jersey Statutes or holding nonprofit exemptions under Section 501(c) of the Internal Revenue Code, parochial and private schools, governmental buildings, libraries and schools and applications of public agencies shall be exempt from paying a development fee.
6. 
Collection of fees.
(a) 
Developers shall pay 50% of the calculated development fee to the Township at the issuance of building permits. For purposes of this payment, the development fee shall be estimated by the Tax Assessor prior to the issuance of building permits. This fee is nonrefundable. This fee is credited against any future fees which may be assessed for affordable housing.
(b) 
Developers shall pay the remaining fee to the Township at the issuance of certificates of occupancy. At the issuance of certificates of occupancy, the Tax Assessor shall calculate the equalized assessed value and the appropriate development fee. The developer shall be responsible for paying the difference between the fee calculated at the issuance of the certificate of occupancy and the amount paid at the issuance of the building permit.
7. 
Contested fees. Imposed and collected development fees that are challenged shall be placed in an interest bearing escrow account by the Township of Pequannock. If all or a portion of the contested fees are returned to the developer, the accrued interest on the returned amount shall also be returned.
8. 
Housing trust fund. All development fees, payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be deposited in a separate, interest-bearing housing trust fund. In establishing the housing trust fund, the municipality shall provide written authorization, in the form of a three-party escrow agreement between the municipality, the bank and the Council, to permit the Council to direct the disbursement of the funds as provided for in N.J.A.C. 5:94-6.16(b). This authorization shall be submitted to the Council within seven days from the opening of the trust fund account. All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by the Council.
9. 
Spending plan summary.
(a) 
Subject to the approval of the Township Council, who shall adopt a Resolution of Approval of Trust Fund Expenditure to be forwarded to the Chief Financial Officer who shall, in turn, issue the funds to be expended, the Township of Pequannock shall use the revenue collected from development fees for any activity approved by the Council on Affordable Housing (COAH) which addresses the fair share housing obligation of the Township of Pequannock, including, but not limited to the following:
(i) 
Rehabilitation of units;
(ii) 
New construction of affordable units;
(iii) 
Regional contribution agreements;
(iv) 
Purchase of land for low- and moderate-income housing;
(v) 
Improvement of land to be used for low- and moderate-income housing;
(vi) 
Extension and/or improvements of roads and infrastructure to low- and moderate-income housing sites;
(vii) 
Assistance designed to render housing units to be more affordable; and
(viii) 
Administration to the implementation of the Housing Plan Element and Fair Share Plan of the Township of Pequannock.
(b) 
Funds shall not be expended to reimburse the Township of Pequannock for past housing activities.
(c) 
After subtracting development fees collected to finance an RCA, a rehabilitation program or a new construction project that are necessary to address the municipality's affordable housing obligation, at least 30% of the balance remaining shall be used to provide affordability assistance to low and moderate-income households in affordable units included in a municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.
[1] 
Affordability assistance programs may include down payment assistance, security deposit assistance, low interest loans, and rental assistance.
[2] 
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low-income units in a municipal Fair Share Plan to make them affordable to households earning 30% or less than median income. The use of development fees in this manner shall entitle a municipality to bonus credits pursuant to N.J.A.C. 5:94-4.22.
[3] 
Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
(d) 
Municipalities may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:94-7.
(e) 
No more than 20% of the revenues collected from development fees each year, exclusive of the fees used to fund an RCA, shall 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 Council monitoring requirements. Development fee administrative costs are calculated and may be expended at the end of each year or upon receipt of the fees.
10. 
Monitoring. The Township Council or its designee shall complete and return to the Council (COAH), as applicable, all monitoring forms related to the collection of development fees, the expenditures of the revenues and the implementation of the Spending Plan Summary. Additionally, the Township Council or its designee shall file quarterly financial reports and annual program implementation and auditing reports with the Council (COAH) or with the Superior Court, as applicable, on forms designed by the Council (COAH).
11. 
Expiration of article. This article shall expire if:
(a) 
COAH revokes substantive certification or its certification of this article.
(b) 
Substantive certification of repose expires prior to the Township filing an adopted housing element with COAH, petitioning for substantive certification or receiving COAH's approval of this article.