[Added 8-27-2018 by Ord.
No. 670]
A.Â
Affordable housing obligation.
(1)Â
This section of the Borough Code sets forth regulations regarding
the low- and moderate-income housing units in the Borough consistent
with the provisions known as the "Substantive Rules of the New Jersey
Council on Affordable Housing," N.J.A.C. 5:93 et seq., the Uniform
Housing Affordability Controls (UHAC), 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, overrides 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. In addition, this section
applies requirements for very-low-income housing as established in
P.L. 2008, c.46 (the "Roberts Bill," codified at N.J.S.A. 52:27D-329.1).
(2)Â
This chapter is intended to assure that very-low-, low- and
moderate-income units ("affordable units") are created with controls
on affordability over time and that very-low-, low- and moderate-income
households shall occupy these units. This Ordinance shall apply to
all inclusionary developments and 100% affordable developments (including
those funded with low-income housing tax credit financing) except
where inconsistent with applicable law.
(3)Â
The Buena Borough Land Use Board has adopted a Housing Element
and Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A.
40:55D-1 et seq. The Plan has also been endorsed by the Borough Council
of the Borough of Buena. The Fair Share Plan describes the ways the
Borough shall address its fair share for low- and moderate-income
housing as determined by the Superior Court and documented in the
Housing Element.
(4)Â
This Ordinance implements and incorporates the Fair Share Plan
and addresses the requirements of N.J.A.C. 5:93, as may be amended
and supplemented.
(5)Â
The Borough shall file monitoring and status reports with the
Superior Court and place the reports on its municipal website. Any
plan evaluation report of the Housing Element and Fair Share Plan
and monitoring evaluation report prepared by the Special Master in
accordance with N.J.A.C. 5:91 shall be available to the public at
the Buena Borough Municipal Building, 616 Central Avenue, Minotola,
New Jersey 08341.
(6)Â
On or about September 27 of each year through the end of the
period of Third Round Judgment of Repose, the Borough will provide
annual reporting of the status of all affordable housing activity
within the municipality through posting on the municipal website with
a copy of such posting provided to all parties to the Borough's Court-approved
settlement agreements, using forms previously developed for this purpose
by the Council on Affordable Housing or any other forms endorsed by
the Special Master and Fair Share Housing Center (FSHC).
(7)Â
The Fair Housing Act includes two provisions regarding action
to be taken by the Borough during the ten-year period of protection
provided in the Borough's agreement with FSHC. The Borough agrees
to comply with those provisions as follows:
(a)Â
By July 1, 2020, the Borough must prepare a midpoint realistic
opportunity review, as required pursuant to N.J.S.A. 52:27D-313, which
the Borough will post on its municipal website, with a copy provided
to FSHC, 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. Such posting shall invite
any interested party to submit comments to the municipality, with
a copy to FSHC, regarding whether any sites no longer present a realistic
opportunity and should be replaced and whether any mechanisms to meet
unmet need should be revised or supplemented. Any interested party
may by motion request a hearing before the Court regarding these issues.
In the event the Court determines that a site or mechanism no longer
presents a realistic opportunity and should be replaced or supplemented,
then the municipality shall have the opportunity to supplement or
revise its plan to correct any deficiency.
(b)Â
Within 30 days of September 27, 2020, and September 27, 2023,
the Borough shall prepare a review of compliance with the very-low-income
housing requirements required by N.J.S.A. 52:27D-329.1 and its Settlement
Agreement with Fair Share Housing Center. The Borough will post on
its municipal website, with a copy provided to FSHC, a status report
as to its satisfaction of its very-low-income requirements, including
the family very-low-income requirements referenced herein and in the
Borough's settlement agreement with FSHC. Such posting shall invite
any interested party to submit comments to the municipality and FSHC
on the issue of whether the municipality has complied with its very-low-income
housing obligation.
B.Â
ACCESSORY APARTMENT
ACT
ADAPTABLE
ADMINISTRATIVE AGENT
AFFIRMATIVE MARKETING
AFFORDABILITY AVERAGE
AFFORDABLE
AFFORDABLE DEVELOPMENT
AFFORDABLE HOUSING DEVELOPMENT
AFFORDABLE HOUSING PROGRAM(S)
AFFORDABLE UNIT
AGE-RESTRICTED UNIT
AGENCY
ALTERNATIVE LIVING ARRANGEMENT
ASSISTED LIVING RESIDENCE
CERTIFIED HOUSEHOLD
COAH
DCA
DEFICIENT HOUSING UNIT
DEVELOPER
DEVELOPMENT
FAIR SHARE PLAN
HOUSING ELEMENT
INCLUSIONARY DEVELOPMENT
LOW-INCOME HOUSEHOLD
LOW-INCOME UNIT
MAJOR SYSTEM
MARKET-RATE UNITS
MEDIAN INCOME
MODERATE-INCOME HOUSEHOLD
MODERATE-INCOME UNIT
NON-EXEMPT SALE
RANDOM SELECTION PROCESS
REGIONAL ASSET LIMIT
REHABILITATION
RENT
RESTRICTED UNIT
SPECIAL MASTER
UHAC
VERY-LOW-INCOME HOUSEHOLD
VERY-LOW-INCOME UNIT
WEATHERIZATION
Definitions. As used herein the following terms shall have the following
meanings:
A self-contained residential dwelling unit with a kitchen,
sanitary facilities, sleeping quarters and a private entrance, which
is created within an existing home, or through the conversion of an
existing accessory structure on the same site, or by an addition to
an existing home or accessory building, or by the construction of
a new accessory structure on the same site.
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 responsible for the administration of affordable
units in accordance with this chapter, N.J.A.C. 5:91, N.J.A.C. 5:93
and N.J.A.C. 5:80-26.1 et seq.
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 restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent within the means of a low- or moderate-income
household as defined in N.J.A.C. 5:93-7.4; 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 housing development all or a portion of which consists
of restricted units.
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100% affordable 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, credited
pursuant to N.J.A.C. 5:93, 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 where the unit
is situated are 62 years or older; or 2) at least 80% of the units
are occupied by one person that is 55 years 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 arrangement includes, but is not limited
to: transitional facilities for the homeless, Class A, B, C, D, and
E boarding homes as regulated by the 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 licensed by the New Jersey Department of Health
and Senior Services to provide apartment-style housing and congregate
dining and to assure that assisted living services are available when
needed for four or more adult persons unrelated to the proprietor
and that offers units containing, at a minimum, one unfurnished room,
a private bathroom, a kitchenette and a lockable door on the unit
entrance.
A household that has been certified by an Administrative
Agent as a low-income household or moderate-income household.
The Council on Affordable Housing, which is in, but not of,
the Department of Community Affairs of the State of New Jersey, that
was established under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301
et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
require 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
proposed to be included in a proposed development including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
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.
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 and establishes
the Borough's fair share obligation.
A development containing both affordable units and market
rate units. This term includes, but is not necessarily limited to,
new construction, the conversion of a nonresidential structure to
residential and the creation of new affordable units through the reconstruction
of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the median household income.
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 or 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 county,
as adopted annually by COAH or approved by the New Jersey Superior
Court.
A household with a total gross annual household income in
excess of 50% but less than 80% of the median household income.
A restricted unit that is affordable to a moderate-income
household.
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 adopted/approved regional income limits.
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 ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
An expert appointed by a judge to make sure that judicial
orders are followed. A master's function is essentially investigative,
compiling evidence or documents to inform some future action by the
court.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the median household income.
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 rehabilitation.
C.Â
New construction. The following requirements shall apply to all new
or planned developments that contain low- and moderate-income housing
units.
(1)Â
Phasing. Final site plan or subdivision approval shall be contingent
upon the affordable housing development meeting the following phasing
schedule for low- and moderate-income units whether developed in a
single-phase development or in a multiphase development:
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%
|
(2)Â
Design. In inclusionary developments, to the extent possible,
low- and moderate-income units shall be integrated with the market
units.
(3)Â
Utilities. Affordable units shall utilize the same type of heating
source as market units within the affordable development.
(4)Â
Low/moderate split and bedroom distribution of affordable housing
units:
(a)Â
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.
(b)Â
In each affordable development, at least 50% of the restricted
units within each bedroom distribution shall be low-income units.
(c)Â
Within rental developments, of the total number of affordable
rental units, at least 13% shall be affordable to very-low-income
households.
(d)Â
Affordable developments that are not age-restricted shall be
structured in conjunction with realistic market demands such that:
[1]Â
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
[2]Â
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
[3]Â
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
[4]Â
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(e)Â
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
The standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
(5)Â
Accessibility requirements:
(a)Â
The first floor of all new restricted townhouse dwelling units
and all restricted multistory dwelling units attached to at least
one other dwelling unit shall be subject to the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
(b)Â
All restricted townhouse dwelling units and all restricted multistory
dwelling units attached to at least one other dwelling unit shall
have the following features:
[1]Â
An adaptable toilet and bathing facility on the first floor;
[2]Â
An adaptable kitchen on the first floor;
[3]Â
An interior accessible route of travel on the first floor;
[4]Â
An interior accessible route of travel shall not be required
between stories within an individual unit;
[5]Â
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
and
[6]Â
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that the Borough has collected funds from the
developer sufficient to make 10% of the adaptable entrances in the
development accessible:
[a]Â
Where a unit has been constructed with an adaptable
entrance, upon the request of a disabled person who is purchasing
or will reside in the dwelling unit, an accessible entrance shall
be installed.
[b]Â
To this end, the builder of restricted units shall
deposit funds within the Borough of Buena's affordable housing trust
fund sufficient to install accessible entrances in 10% of the affordable
units that have been constructed with adaptable entrances.
[c]Â
The funds deposited under Subsection C(5)(b)[6][b]
herein shall be used by the Borough for the sole purpose of making
the adaptable entrance of any affordable unit accessible when requested
to do so by a person with a disability who occupies or intends to
occupy the unit and requires an accessible entrance.
[d]Â
The developer of the restricted units shall submit
a design plan and cost estimate for the conversion from adaptable
to accessible entrances to the Construction Official of the Borough
of Buena.
[e]Â
Once the Construction 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,
and that the cost estimate of such conversion is reasonable, payment
shall be made to the Borough of Buena's affordable housing trust fund
in care of the Municipal Treasurer who shall ensure that the funds
are deposited into the affordable housing trust fund and appropriately
earmarked.
[f]Â
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.
(6)Â
Maximum rents and sales prices.
(a)Â
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.
(b)Â
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 low- and
moderate-income units shall be affordable to households earning no
more than 52% of median income.
(c)Â
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.
[1]Â
At least 13% of all low- and moderate-income rental units shall
be affordable to households earning no more than 30% of median income.
(d)Â
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 prices for each
bedroom type, and low-income ownership units must be available for
at least two different prices for each bedroom type.
(e)Â
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units other
than assisted living facilities, the following standards shall be
met:
[1]Â
A studio or efficiency unit shall be affordable to a one-person
household;
[2]Â
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
[3]Â
A two-bedroom unit shall be affordable to a three-person household;
[4]Â
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
[5]Â
A four-bedroom unit shall be affordable to a six-person household.
(f)Â
In determining the initial rents for compliance with the affordability
average requirements for restricted units in assisted living facilities,
the following standards shall be met:
(g)Â
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.
(h)Â
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
household size 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.
(i)Â
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 the Uniform Housing Affordability Controls 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:
[1]Â
Regional income limits shall be established for the Region 6
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 6. 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.
[2]Â
The income limits calculated each year shall be the result of applying the percentages set forth in Subsection C(6)(i)[1] 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.
[3]Â
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 C(6)(i)[1] 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.
(j)Â
The rent levels of very-low-, low- and moderate-income units
may be increased annually based on the percentage increase in the
Housing Consumer Price Index for the Northeast Urban Area, upon its
publication for the prior calendar year. 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.
(k)Â
Tenant-paid utilities that are included in the utility allowance
shall be so stated in the lease and shall be consistent with the utility
allowance approved by DCA for its Section 8 program.
D.Â
Condominium and homeowners' association fees. For any affordable
housing unit that is part of a condominium association and/or homeowners'
association, the master deed shall reflect that the association fee
assessed for each affordable housing unit shall be established at
100% of the market rate fee.
A.Â
Purpose. The requirements of this section apply to all developments
that contain affordable housing units, including any currently unanticipated
future developments that will provide low- and moderate-income housing
units.
B.Â
Affirmative marketing.
(1)Â
The Borough shall adopt by resolution an affirmative marketing
plan, subject to approval of the Superior Court, compliant with N.J.A.C.
5:80-26.15, as may be amended and supplemented.
(2)Â
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 also intended to target those potentially
eligible persons who are least likely to apply for affordable units
in that region. It is a continuing program that directs all marketing
activities toward COAH Housing Region 6 and covers the period of deed
restriction.
(3)Â
The affirmative marketing plan shall provide a regional preference
for all households that live and/or work in COAH Housing Region 6,
comprised of Atlantic, Cape May, Cumberland and Salem Counties.
(4)Â
The Administrative Agent designated by the Borough shall assure
the affirmative marketing of all affordable units is consistent with
the affirmative marketing plan for the municipality.
(5)Â
In implementing the affirmative marketing plan, the Administrative
Agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
(6)Â
The affirmative marketing process for available affordable units
shall begin at least four months prior to the expected date of occupancy.
(7)Â
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner,
unless otherwise determined or agreed to by the Borough of Buena.
C.Â
Occupancy standards.
(1)Â
In referring certified households to specific restricted units,
to the extent feasible, and without causing an undue delay in occupying
the unit, the Administrative Agent shall strive to:
(2)Â
Additional provisions related to occupancy standards (if any)
shall be provided in the municipal Operating Manual.
D.Â
Selection of occupants of affordable housing units.
E.Â
Control periods for restricted ownership units and enforcement mechanisms.
(1)Â
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, and each restricted ownership unit shall
remain subject to the controls on affordability for a period of at
least 30 years, until the municipality takes action to release the
controls on affordability.
(2)Â
Rehabilitated owner-occupied housing units that are improved
to code standards shall be subject to affordability controls for a
period of 10 years.
(3)Â
The affordability control period for a restricted ownership
unit shall commence on the date the initial certified household takes
title to the unit.
(4)Â
The affordability controls set forth in this Ordinance shall
remain in effect despite the entry and enforcement of any judgment
of foreclosure with respect to restricted ownership units.
(5)Â
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all code standards upon the first
transfer of title that follows the expiration of the applicable minimum
control period provided under N.J.A.C. 5:80-26.5(a), as may be amended
and supplemented.
F.Â
Price restrictions for restricted ownership units, homeowner association
fees and resale prices. 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:
(1)Â
The initial purchase price for a restricted ownership unit shall
be approved by the Administrative Agent.
(2)Â
The Administrative Agent shall approve all resale prices, in
writing and in advance of the resale, to assure compliance with the
foregoing standards.
(3)Â
The method used to determine the condominium association fee
amounts and special assessments shall be indistinguishable between
the low- and moderate-income unit owners and the market unit owners.
(4)Â
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. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
G.Â
Buyer income eligibility.
(1)Â
Buyer income eligibility for restricted ownership units shall
be in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income and moderate-income ownership units shall be reserved for households
with a gross household income less than 80% of median income.
(2)Â
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 certified monthly income.
H.Â
Limitations on indebtedness secured by ownership unit; subordination.
(1)Â
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the administrative agent shall determine in writing
that the proposed indebtedness complies with the provisions of this
section.
(2)Â
With the exception of original purchase money mortgages, during
a control period 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 that unit,
as such price is determined by the administrative agent in accordance
with N.J.A.C. 5:80-26.6(b).
I.Â
Control periods for restricted rental units.
(1)Â
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, and each restricted rental unit shall remain
subject to the controls on affordability for a period of at least
30 years, until the municipality takes action to release the controls
on affordability.
(a)Â
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.
(2)Â
Rehabilitated renter-occupied housing units that are improved
to code standards shall be subject to affordability controls for a
period of 10 years.
(3)Â
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 Atlantic. A copy of the filed document shall be provided
to the Administrative Agent within 30 days of the receipt of a certificate
of occupancy.
(4)Â
A restricted rental unit shall remain subject to the affordability
controls of this Ordinance, despite the occurrence of any of the following
events:
J.Â
Price restrictions for rental units; leases.
(1)Â
A written lease shall be required for all restricted rental
units, except for units in an assisted living residence, and tenants
shall be responsible for security deposits and the full amount of
the rent as stated on the lease. A copy of the current lease for each
restricted rental unit shall be provided to the Administrative Agent.
(2)Â
No additional fees or charges shall be added to the approved
rent (except, in the case of units in an assisted living residence,
to cover the customary charges for food and services) without the
express written approval of the Administrative Agent.
(3)Â
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 Ordinance.
K.Â
Tenant income eligibility.
(1)Â
Tenant income eligibility shall be in accordance with N.J.A.C.
5:80-26.13, as may be amended and supplemented, and shall be determined
as follows:
(a)Â
Very-low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of median
income.
(b)Â
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of median income.
(c)Â
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of median income.
(2)Â
The Administrative Agent shall certify a household as eligible
for a restricted rental unit when the household is a very-low-income,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(a)Â
The household currently pays more than 35% (40% for households
eligible for age-restricted units) of its gross household income for
rent, and the proposed rent will reduce its housing costs;
(b)Â
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(c)Â
The household is currently in substandard or overcrowded living
conditions;
(d)Â
The household documents the existence of assets with which the
household proposes to supplement the rent payments; or
(e)Â
The household documents proposed third-party assistance from
an outside source such as a family member in a form acceptable to
the Administrative Agent and the owner of the unit.
L.Â
Conversions. Each housing unit created through the conversion of
a nonresidential structure shall be considered a new housing unit
and shall be subject to the affordability controls for a new housing
unit.
M.Â
Alternative living arrangements.
(1)Â
The administration of an alternative living arrangement shall
be in compliance with N.J.A.C. 5:93-5.8 and UHAC, with the following
exceptions:
(2)Â
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.
(3)Â
The service provider for the alternative living arrangement
shall act as the Administrative Agent for the purposes of administering
the affirmative marketing and affordability requirements for the alternative
living arrangement.
A.Â
Municipal Housing Liaison.
(1)Â
The position of Municipal Housing Liaison for the Borough of
Buena is hereby established. The Municipal Housing Liaison shall be
appointed by duly adopted resolution of the governing body and be
subject to the approval by the Superior Court.
(2)Â
The Municipal Housing Liaison must be either a full-time or
part-time employee of the Borough of Buena.
(3)Â
The Municipal Housing Liaison must meet the requirements for
qualifications, including initial and periodic training found in N.J.A.C.
5:93.
(4)Â
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of Buena, including the following responsibilities which may not be
contracted out to the Administrative Agent:
(a)Â
Serving as the municipality's primary point of contact for all
inquiries from the state, affordable housing providers, Administrative
Agents and interested households;
(b)Â
The implementation of the affirmative marketing plan and affordability
controls;
(c)Â
When applicable, supervising any contracting Administrative
Agent;
(d)Â
Monitoring the status of all restricted units in the Borough
of Buena's Fair Share Plan;
(e)Â
Compiling, verifying and submitting annual reports as required
by the Superior Court;
(f)Â
Coordinating meetings with affordable housing providers and
Administrative Agents, as applicable; and
(g)Â
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by the Superior Court.
B.Â
Administrative Agent.
(1)Â
The Borough shall designate by resolution of the governing body,
subject to the approval of the Superior Court, one or more Administrative
Agents to administer newly constructed affordable units in accordance
with N.J.A.C. 5:93 and UHAC.
(2)Â
An Operating Manual shall be provided by the Administrative
Agent(s) to be adopted by resolution of the governing body and subject
to approval of the Superior Court. The Operating Manuals shall be
available for public inspection in the Office of the Municipal Clerk
and in the office(s) of the Administrative Agent(s).
(3)Â
The Administrative Agent shall perform the duties and responsibilities
of an administrative agent as are set forth in UHAC and which are
described in full detail in the Operating Manual, including those
set forth in N.J.A.C. 5:80-26.14, 16 and 18 thereof, which includes:
(a)Â
Attending continuing education opportunities on affordability
controls, compliance monitoring, and affirmative marketing as offered
or approved by the Superior Court;
(b)Â
Affirmative marketing;
(c)Â
Household certification;
(d)Â
Affordability controls;
(e)Â
Records retention;
(f)Â
Resale and rerental;
(g)Â
Processing requests from unit owners;
(h)Â
Enforcement, although the ultimate responsibility for retaining
controls on the units rests with the municipality;
(i)Â
The Administrative Agent shall, as delegated by the governing
body, have the authority to take all actions necessary and appropriate
to carry out its responsibilities, hereunder.
C.Â
Enforcement of affordable housing regulations.
(1)Â
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, municipal fines, a requirement
for household recertification, acceleration of all sums due under
a mortgage, recoupment of any funds from a sale in the violation of
the regulations, injunctive relief to prevent further violation of
the regulations, entry on the premises, and specific performance.
(2)Â
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 against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
(a)Â
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
found 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:
[1]Â
A fine of not more than $500 or imprisonment for a period not
to exceed 90 days, or both. Each and every day that the violation
continues or exists shall be considered a separate and specific violation
of these provisions and not as a continuing offense;
[2]Â
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Borough of Buena Affordable Housing Trust
Fund of the gross amount of rent illegally collected;
[3]Â
In the case of an owner who has rented his or her 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.
(b)Â
The municipality may file a court action in the Superior Court
seeking a judgment, which would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any 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- and moderate-income unit.
(3)Â
Such 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 the right
to possession terminated as well as the title conveyed pursuant to
the Sheriff's sale.
(4)Â
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 and to the 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.
(5)Â
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.
(6)Â
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the municipality may acquire title to the low- and moderate-income
unit by satisfying the first purchase money mortgage and any prior
liens and crediting the violating owner with an amount equal to the
difference between the first purchase money mortgage and any prior
liens and costs of the enforcement proceedings, including legal fees
and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
(7)Â
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.
(8)Â
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.
D.Â
Appeals. Appeals from all decisions of an Administrative Agent designated
pursuant to this Ordinance shall be filed in writing with the Borough.
A.Â
Purpose.
(1)Â
In Holmdel Builder's Association v. Holmdel Township, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985, N.J.S.A.
52:27d-301 et seq., and the State Constitution, subject to the adoption
of rules by the Council on Affordable Housing (COAH).
(2)Â
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2)
and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), COAH was authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that were under the jurisdiction of
COAH and that are now before a court of competent jurisdiction and
have a Court-approved spending plan may retain fees collected from
nonresidential development.
(3)Â
This Ordinance establishes standards for the collection, maintenance,
and expenditure of development fees that are consistent with COAH's
regulations developed in response to P.L. 2008, c. 46, Sections 8
and 32-38 (N.J.S.A. 52:27D- 329.2) and the Statewide Non-Residential
Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected
pursuant to this Ordinance shall be used for the sole purpose of providing
low- and moderate-income housing in accordance with a Court-approved
spending plan.
C.Â
AFFORDABLE HOUSING DEVELOPMENT
COAH or THE COUNCIL
DEVELOPER
DEVELOPMENT FEE
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
Definitions. The following terms, as used in this Ordinance, shall
have the following meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100% affordable housing development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted at N.J.A.N.J.S.A. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L. 1973, c. 123 (C 54:1-35a through N.J.S.A. 54:1-35c).
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
D.Â
Residential development fees.
(1)Â
Imposition of fees. Within the Borough of Buena, all residential
developers, except for developers of the types of developments specifically
exempted below and developers of developments that include affordable
housing, shall pay a fee in accordance with the following:
(a)Â
For each new residential dwelling unit that is constructed pursuant
to an application for development before the Planning or Zoning Board,
except for isolated lot variances pursuant to N.J.S.A. 40:55D-70c
on an existing lot of record, a fee of 1.5% of the equalized assessed
value of the residential development fee imposed for the purposes
of funding the Borough's Affordable Housing Program.
(b)Â
When an increase in residential density is permitted pursuant
to a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers
shall be required to pay a "bonus" development fee of 6% of the equalized
assessed value for each additional unit that may be realized, except
that this provision shall not be applicable to a development that
will include affordable housing. If the zoning on a site has changed
during the two-year period preceding the filing of such a variance
application, the base density for the purposes of calculating the
bonus development fee shall be the highest density permitted by right
during the two-year period preceding the filing of the variance application.
(2)Â
Eligible exactions, ineligible exactions and exemptions for
residential developments.
(a)Â
Affordable housing developments and/or developments where the
developer has made a payment in lieu of on-site construction of affordable
units, if permitted by ordinance or by agreement with the Borough
of Buena, shall be exempt from the payment of development fees.
(b)Â
Developments that have received preliminary or final site plan
approval prior to the adoption of this Ordinance shall be exempt from
the payment of development fees, unless the developer seeks a substantial
change in the original approval. Where site plan approval is not applicable,
the issuance of a zoning permit and/or construction permit shall be
synonymous with preliminary or final site plan approval for the purpose
of determining the right to an exemption. In all cases, the applicable
fee percentage shall be determined based upon the Development Fee
Ordinance in effect on the date that the construction permit is issued.
(c)Â
Improvements or additions to existing one- and two-family dwellings
on individual lots shall not be required to pay a development fee,
but a development fee shall be charged for any new dwelling constructed
as a replacement for a previously existing dwelling on the same lot
that was or will be demolished, unless the owner resided in the previous
dwelling for a period of one year or more prior to obtaining a demolition
permit. Where a development fee is charged for a replacement dwelling,
the development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
(d)Â
Homes replaced as a result of a natural disaster (such as a
fire or flood) shall be exempt from the payment of a development fee.
E.Â
Nonresidential development fees.
(1)Â
Imposition of fees.
(a)Â
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, shall pay a fee equal to 2.5% of the equalized assessed value
of the land and improvements, for all new nonresidential construction
on an unimproved lot or lots.
(b)Â
Within all zoning districts, nonresidential developers, except
for developers of the types of developments specifically exempted
below, shall also pay a fee equal to 2.5% of the increase in equalized
assessed value resulting from any additions to existing structures
to be used for nonresidential purposes.
(c)Â
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and improvements and the equalized assessed
value of the newly improved structure, i.e., land and improvements,
and such calculation shall be made at the time a final certificate
of occupancy is issued. If the calculation required under this section
results in a negative number, the nonresidential development fee shall
be zero.
(2)Â
Eligible exactions, ineligible exactions and exemptions for
nonresidential development.
(a)Â
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to a 2.5% development fee, unless
otherwise exempted below.
(b)Â
The 2.5% development fee shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within the
existing footprint, reconstruction, renovations and repairs.
(c)Â
Nonresidential developments shall be exempt from the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to the Statewide Non-Residential Development Fee
Act (N.J.S.A. 40:55D-8.1 through 8.7), as specified in Form N-RDF,
State of New Jersey Non-Residential Development Certification/Exemption.
Any exemption claimed by a developer shall be substantiated by that
developer.
(d)Â
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to the Statewide Non-Residential
Development Fee Act shall be subject to the fee at such time as the
basis for the exemption no longer applies, and shall make the payment
of the nonresidential development fee, in that event, within three
years after that event or after the issuance of the final certificate
of occupancy for the nonresidential development, whichever is later.
(e)Â
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Borough of Buena as a lien against the real
property of the owner.
F.Â
Collection procedures.
(1)Â
Upon the granting of a preliminary, final or other applicable
approval for a development, the approving authority or entity shall
notify or direct its staff to notify the Construction Official responsible
for the issuance of a construction permit.
(2)Â
For nonresidential developments only, the developer shall also
be provided with a copy of Form N-RDF, State of New Jersey Non-Residential
Development Certification/Exemption, to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
(3)Â
The Construction Official responsible for the issuance of a
construction permit shall notify the Borough Tax Assessor of the issuance
of the first construction permit for a development which is subject
to a development fee.
(4)Â
Within 90 days of receipt of such notification, the Borough
Tax Assessor shall prepare an estimate of the equalized assessed value
of the development based on the plans filed.
(5)Â
The Construction Official responsible for the issuance of a
final certificate of occupancy shall notify the Borough Tax Assessor
of any and all requests for the scheduling of a final inspection on
a property which is subject to a development fee.
(6)Â
Within 10 business days of a request for the scheduling of a
final inspection, the Borough Tax Assessor shall confirm or modify
the previously estimated equalized assessed value of the improvements
associated with the development; calculate the development fee; and
thereafter notify the developer of the amount of the fee.
(7)Â
Should the Borough of Buena fail to determine or notify the
developer of the amount of the development fee within 10 business
days of the request for final inspection, the developer may estimate
the amount due and pay that estimated amount consistent with the dispute
process set forth in Subsection b. of Section 37 of P.L. 2008, c.46
(N.J.S.A. 40:55D-8.6).
(8)Â
Except as provided in Subsection E(1)(3) hereinabove, 50% of
the initially calculated development fee shall be collected at the
time of issuance of the construction permit. The remaining portion
shall be collected at the time of issuance of the certificate of occupancy.
The developer shall be responsible for paying the difference between
the fee calculated at the time of issuance of the construction permit
and that determined at the time of issuance of the certificate of
occupancy.
(9)Â
Appeal of development fees.
(a)Â
A developer may challenge residential development fees imposed
by filing a challenge with the County Board of Taxation. Pending a
review and determination by the Board, collected fees shall be placed
in an interest-bearing escrow account by the Borough of Buena. Appeals
from a determination of the Board may be made to the tax court in
accordance with the provisions of the State Tax Uniform Procedure
Law, R.S. 54:48-1, et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
(b)Â
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by the Borough of
Buena. Appeals from a determination of the Director may be made to
the tax court in accordance with the provisions of the State Tax Uniform
Procedure Law, R.S.54:48-1, et seq., within 90 days after the date
of such determination. Interest earned on amounts escrowed shall be
credited to the prevailing party.
G.Â
Affordable Housing Trust Fund.
(1)Â
There is hereby created a separate, interest-bearing Affordable
Housing Trust Fund to be maintained by the Chief Financial Officer
of the Borough of Buena for the purpose of depositing development
fees collected from residential and nonresidential developers and
proceeds from the sale of units with extinguished controls.
(2)Â
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(a)Â
Payments in lieu of on-site construction of a fraction of an
affordable unit, where permitted by ordinance or by agreement with
the Borough of Buena;
(b)Â
Funds contributed by developers to make 10% of the adaptable
entrances in a townhouse or other multistory attached dwelling unit
development accessible;
(c)Â
Rental income from municipally operated units;
(d)Â
Repayments from affordable housing program loans;
(e)Â
Recapture funds;
(f)Â
Proceeds from the sale of affordable units; and
(g)Â
Any other funds collected in connection with Buena's affordable
housing program.
(3)Â
In the event of a failure by the Borough of Buena to comply
with trust fund monitoring and reporting requirements or to submit
accurate monitoring reports: or a failure to comply with the conditions
of the judgment of compliance or a revocation of the judgment of compliance;
or a failure to implement the approved spending plan and to expend
funds within the applicable required time period as set forth in In
re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (affd 442 N.J.
Super. 563); or the expenditure of funds on activities not approved
by the Court; or for other good cause demonstrating the unapproved
use(s) of funds, the Court may authorize the State of New Jersey,
Department of Community Affairs, Division of Local Government Services
(LGS), to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the Borough of Buena, or, if not practicable, then within the
county or the Housing Region.
(a)Â
Any party may bring a motion before the Superior Court presenting
evidence of such condition(s), and the Court may, after considering
the evidence and providing the municipality a reasonable opportunity
to respond and/or to remedy the noncompliant condition(s), and upon
a finding of continuing and deliberate noncompliance, determine to
authorize LGS to direct the expenditure of funds in the Trust Fund.
The Court may also impose such other remedies as may be reasonable
and appropriate to the circumstances.
(4)Â
Interest accrued in the Affordable Housing Trust Fund shall
only be used to fund eligible affordable housing activities approved
by the Court.
H.Â
Use of funds.
(1)Â
The expenditure of all funds shall conform to a spending plan
approved by the Court. Funds deposited in the Affordable Housing Trust
Fund may be used for any activity approved by the Court to address
the Borough of Buena's fair share obligation and may be set up as
a grant or revolving loan program. Such activities include, but are
not limited to, preservation or purchase of housing for the purpose
of maintaining or implementing affordability controls; housing rehabilitation;
new construction of affordable housing units and related costs; accessory
apartments; a market to affordable program; Regional Housing Partnership
programs; conversion of existing nonresidential buildings to create
new affordable units; green building strategies designed to be cost
saving and in accordance with accepted national or state standards;
purchase of land for affordable housing; improvement of land to be
used for affordable housing; extensions or improvements of roads and
infrastructure to affordable housing sites; financial assistance designed
to increase affordability; administration necessary for implementation
of the Housing Element and Fair Share Plan; and/or any other activity
permitted by the Court and specified in the approved spending plan.
(2)Â
Funds shall not be expended to reimburse the Borough of Buena
for past housing activities.
(3)Â
At least 30% of all development fees collected and interest
earned on such fees shall be used to provide affordability assistance
to low- and moderate-income households in affordable units included
in the municipal Fair Share Plan. One-third of the affordability assistance
portion of development fees collected shall be used to provide affordability
assistance to those households earning 30% or less of the median income
for Housing Region 6, in which Buena is located.
(a)Â
Affordability assistance programs may include down payment assistance,
security deposit assistance, low-interest loans, rental assistance,
assistance with homeowners' association or condominium fees and special
assessments, and assistance with emergency repairs. The specific programs
to be used for affordability assistance shall be identified and described
within the spending plan.
(b)Â
Affordability assistance to households earning 30% or less of
median income may include buying down the cost of low- or moderate-income
units in the municipal Fair Share Plan to make them affordable to
households earning 30% or less of median income. The specific programs
to be used for very-low-income affordability assistance shall be identified
and described within the spending plan.
(c)Â
Payments in lieu of constructing affordable housing units on
site, if permitted by ordinance or by agreement with the Borough of
Buena, and funds from the sale of units with extinguished controls
shall be exempt from the affordability assistance requirement.
(4)Â
The Borough of Buena may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including its programs for affordability assistance.
(5)Â
No more than 20% of all revenues collected from development
fees may be expended on administration, including, but not limited
to, salaries and benefits for municipal employees or consultants'
fees necessary to develop or implement a new construction program,
prepare a Housing Element and Fair Share Plan, and/or administer an
affirmative marketing program or a rehabilitation program.
(a)Â
In the case of a rehabilitation program, the administrative
costs of the rehabilitation program shall be included as part of the
20% of collected development fees that may be expended on administration.
(b)Â
Administrative funds may be used for income qualification of
households, monitoring the turnover of sale and rental units, and
compliance with COAH's monitoring requirements. Legal or other fees
related to litigation opposing affordable housing sites or related
to securing or appealing a judgment from the Court are not eligible
uses of the Affordable Housing Trust Fund.
I.Â
Monitoring. The Borough of Buena shall provide annual reporting of
Affordable Housing Trust Fund activity to the State of New Jersey,
Department of Community Affairs, Council on Affordable Housing or
Local Government Services 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, Council on Affordable
Housing or Local Government Services. The reporting shall include
an accounting of all Affordable Housing Trust Fund activity, including
the sources and amounts of funds collected and the amounts and purposes
for which any funds have been expended. Such reporting shall include
an accounting of development fees collected from residential and nonresidential
developers, payments in lieu of constructing affordable units on site
(if permitted by ordinance or by agreement with the Borough), funds
from the sale of units with extinguished controls, barrier free escrow
funds, rental income from Borough-owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Buena's affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the spending plan approved by the Court.
J.Â
Ongoing collection of fees.
(1)Â
The ability for the Borough of Buena to impose, collect and
expend development fees shall expire with the expiration of the repose
period covered by its judgment of compliance unless the Borough of
Buena has first filed an adopted Housing Element and Fair Share Plan
with the Court or with a designated state administrative agency, has
petitioned for a judgment of compliance from the court or for substantive
certification or its equivalent from a state administrative agency
authorized to approve and administer municipal affordable housing
compliance and has received approval of its development fee ordinance
from the entity that will be reviewing and approving the Housing Element
and Fair Share Plan.
(2)Â
If the Borough of Buena fails to renew its ability to impose
and collect development fees prior to the expiration of its judgment
of compliance, it may be subject to forfeiture of any or all funds
remaining within its Affordable Housing Trust Fund. Any funds so forfeited
shall be deposited into the New Jersey Affordable Housing Trust Fund
established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A.
52:27D-320).
(3)Â
The Borough of Buena shall not impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its judgment of compliance, nor shall
the Borough of Buena retroactively impose a development fee on such
a development. The Borough of Buena also shall not expend any of its
collected development fees after the expiration of its judgment of
compliance.
A.Â
In accordance with the rules and regulations pursuant to N.J.A.C.
5:94 et seq. and the New Jersey Uniform Housing Affordability Controls
pursuant to N.J.A.C. 5:80-26 et seq., Buena Borough adopts the following
as an affirmative marketing plan.
(1)Â
All affordable housing units shall be marketed in accordance
with the provisions herein.
(2)Â
The Borough of Buena has an affordable housing obligation. This
subsection shall apply to all developments that contain proposed low-
and moderate-income units and any future developments that may occur.
(3)Â
In implementing the affirmative marketing program, the Municipal
Housing Liaison shall undertake all of the following strategies:
(a)Â
Publication of one advertisement in a newspaper of general circulation
within the housing region.
(b)Â
Broadcast of one advertisement by a radio or television station
broadcasting throughout the housing region.
(c)Â
At least one additional regional marketing strategy using one
of the other sources listed below.
(4)Â
The affirmative marketing plan is a regional marketing strategy
designed to attract buyers and/or renters of all majority and minority
groups, regardless of race, creed, color, national origin, ancestry,
marital or familial status, gender, affectional or sexual orientation,
disability, age or number of children, to housing units which are
being marketed by a developer or sponsor of affordable housing. The
affirmative marketing plan is also intended to target those potentially
eligible persons who are least likely to apply for affordable units
in that region. It is a continuing program that directs all marketing
activities toward the COAH Housing Region in which the municipality
is located and covers the period of deed restriction. The Borough
of Buena is in the Housing Region 6 consisting of Atlantic, Cape May,
Cumberland and Salem Counties. The affirmative marketing program is
a continuing program and shall meet the following requirements:
(b)Â
The primary marketing shall take the form of at least one press
release sent to the above publication and a paid display advertisement
in the above newspaper. Additional advertising and publicity shall
be on an "as needed" basis. The developer shall disseminate all public
service announcements and pay for display advertisements. The developer
shall provide proof of publication to the Housing Administrator. The
Housing Administrator shall approve all press releases and advertisements
in advance. The advertisement shall include a description of the:
[1]Â
Location of the units;
[2]Â
Direction to the units;
[3]Â
Range of prices for the units;
[4]Â
Size, as measured in bedrooms, of units;
[5]Â
Maximum income permitted to qualify for the units;
[6]Â
Location of applications;
[7]Â
Business hours when interested households may obtain an application;
and
[8]Â
Application fees, if any.
(e)Â
The following is the location of applications, brochure(s),
sign(s) and/or poster(s) used as part of the affirmative marketing
program:
[1]Â
Buena Borough Municipal Building.
[2]Â
Atlantic County Public Library and Branches.
[3]Â
Buena Borough Web site.
[4]Â
Developer's sales office.
[5]Â
Municipal libraries and municipal administrative buildings in
the region.
[6]Â
Atlantic County Office of Municipal and County Government Services.
[7]Â
Atlantic County Housing Authority.
(f)Â
The following is a listing of community contact person(s) and/or
organizations(s) in Atlantic, Cape May, Cumberland and Salem that
will aid in the affirmative marketing program with particular emphasis
on contracts that will reach out to groups that are least likely to
apply for housing within the region:
[1]Â
Lions Club.
[2]Â
Habitat for Humanity.
[3]Â
Rotary Club.
[4]Â
Houses of worship.
[5]Â
New Jersey Housing Resource Center.
[6]Â
Fair Share Housing Center.
[7]Â
The New Jersey State Conference of the NAACP.
[8]Â
Latino Action Network.
[9]Â
Mainland/Pleasantville, Mizpah, Atlantic City and Cape May County
branches of the NAACP.
(g)Â
Quarterly flyers and applications shall be sent to each of the
following agencies for publication in their journals and for circulation
among their members:
(5)Â
Applications shall be mailed to prospective applicants upon
request. Also, applications shall be available at the developer's
sales/rental office.
(6)Â
Additionally, quarterly informational circulars and applications
shall be sent to the chief administrative employees of each of the
following agencies in the counties of Atlantic, Cape May, Cumberland
and Salem:
(7)Â
A random selection method to select occupants of low- and moderate-income
housing will be used by the Municipal Housing Liaison, in conformance
with N.J.A.C. 5:80-26.16(1).
B.Â
The Municipal Housing Liaison is the person responsible to administer
the program. The Municipal Housing Liaison has the responsibility
to income qualify low- and moderate-income households; to place income-eligible
households in low- and moderate-income units upon initial occupancy;
to provide for the initial occupancy of low- and moderate-income units
with income-qualified households; to continue to qualify households
for reoccupancy of units as they become vacant during the period of
affordability controls; to assist with outreach to low- and moderate-income
households; and to enforce the terms of the deed restriction and mortgage
loan as per N.J.A.C. 5:80-26. The Municipal Housing Liaison within
the Borough of Buena is the designated housing officer to act as liaison
to the Borough Administrator. Also, the Municipal Housing Liaison
shall direct qualified low- and moderate-income applicants to counseling
services on subjects such as budgeting, credit issues, mortgage qualifications,
rental lease requirements and landlord/tenant law.
C.Â
All developers of low- and moderate-income housing units shall be
required to assist in the marketing of the affordable units in their
respective developments.
D.Â
The marketing program shall commence at least 120 days before the
issuance of either temporary or permanent certificates of occupancy.
The marketing program shall continue until all low-income housing
units are initially occupied and for as long as affordable units are
deed restricted and occupancy or reoccupancy of units continue to
be necessary.
E.Â
The Municipal Housing Liaison will comply with monitoring and reporting
requirements as per N.J.A.C. 5:80-26.