[HISTORY: Adopted by the Mayor and Council of the Borough
of Dunellen as indicated in article histories. Amendments noted where
applicable.]
[Adopted 7-6-2009 by Ord.
No. 09-09; amended in its entirety 6-20-2016 by Ord. No. 2016-13]
A.
In Holmdel Builder's Association v. Holmdel Township, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985 (the
Act), N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject
to the Council on Affordable Housing's (COAH's) adoption
of rules.
B.
Pursuant to P.L. 2008, c.46, Section 8 (N.J.S.A. 52:27D-329.2) and
the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), COAH is authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that are under the jurisdiction of
the Council or court of competent jurisdiction and have a COAH-approved
spending plan may retain fees collected from nonresidential development.
C.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance P.L. 2008, c.46, Sections 8 and 32-38.[1] Fees collected pursuant to this article shall be used
for the sole purpose of providing low- and moderate-income housing.
This article shall be interpreted within the framework of COAH's
rules on development fees, codified at N.J.A.C. 5:93-8.[2]
[1]
Editor's Note: See N.J.S.A. 52:27D-329.2 and the Statewide
Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7).
[2]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
B.
The Borough of Dunellen shall not spend development fees until COAH
and/or a court of competent jurisdiction has approved a plan for spending
such fees in conformance with N.J.A.C. 5:93-8.9.[2]
[2]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
The following terms, as used in this article, shall have the
following meanings:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100% affordable development.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:93-8.[1]
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 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.
[1]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
A.
Imposed fees.
(1)
Within the RA District, RB District, and the area governed by the
Dunellen Downtown Redevelopment Plan, residential developers, except
for developers of the types of development specifically exempted below,
shall pay a fee of 1 1/2% of the equalized assessed value for
residential development provided no increased density is permitted
and that the proposed density complies with applicable standards of
the Dunellen land use ordinances.
(2)
When an increase in residential density pursuant to N.J.S.A. 40:55D-70D(5)
(known as a "d" variance) has been permitted, developers may be required
to pay a development fee of 6% of the equalized assessed value for
each additional unit in excess of applicable ordinance standards that
may be realized. However, if the zoning on a site has changed during
the two-year period immediately 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.
Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal 1 1/2%
of the equalized assessed value on the first two units; and the specified
higher percentage up to 6% of the equalized assessed value for the
two additional units, provided zoning on the site has not changed
during the two-year period preceding the filing of such a variance
application.
B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
Affordable housing developments and developments where the developer
has made a payment in lieu of on-site construction of affordable units
shall be exempt from development fees.
(2)
Any development within an area in need of redevelopment or rehabilitation,
where a redevelopment agreement that includes specific requirements
related to the provision of affordable housing has been executed by
the Borough and the designated redeveloper, shall be exempt from development
fees.
(3)
Developments that have received preliminary or final site plan approval
prior to the adoption of a municipal development fee ordinance shall
be exempt from development fees, unless the developer seeks a substantial
change in the approval. Where a site plan approval does not apply,
a zoning and/or building permit shall be synonymous with preliminary
or final site plan approval for this purpose. The fee percentage shall
be vested on the date that the building permit is issued.
(4)
Development fees shall be imposed and collected when an existing
structure undergoes a change to a more intense use, is demolished
and replaced, or is expanded, if the expansion is not otherwise exempt
from the development fee requirement. The development fee shall be
calculated on the increase in the equalized assessed value of the
improved structure.
(5)
Developers of one- and two-family homes shall be exempt from paying
a development fee under the following circumstances: Residential structures
demolished and replaced as a result of a natural disaster, including
fire, green buildings, and property converted from commercial to residential
use, creating additional housing.
A.
Imposed fees.
(1)
Within all zoning districts, nonresidential developers, except for
developers of the types of development specifically exempted, shall
pay a fee equal to 2.5% of the equalized assessed value of the land
and improvements, for all new nonresidential construction on an unimproved
lot or lots.
(2)
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to 2.5%
of the increase in equalized assessed value resulting from any additions
to existing structures to be used for nonresidential purposes.
(3)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and improvement and the equalized assessed
value of the newly improved structure, i.e., land and improvement,
at the time final certificate of occupancy is issued. If the calculation
required under this section results in a negative number, the nonresidential
development fee shall be zero.
B.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development
(1)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the 2.5% development fee unless
otherwise exempted below.
(2)
The 2.5% fee shall not apply to an increase in equalized assessed
value resulting from alterations, change in use within existing footprint,
reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from the payment of nonresidential
development fees in accordance with the exemptions required pursuant
to P.L. 2008, c.46, as specified in the Form N-RDF "State of New Jersey
Nonresidential Development Certification/Exemption" Form. Any exemption
claimed by a developer shall be substantiated by that developer.
(4)
A developer of a nonresidential development exempted from the nonresidential
development fee pursuant to P.L. 2008, c.46, shall be subject to it
at such time the basis for the exemption no longer applies, and shall
make the payment of the nonresidential development fee, in that event,
within three years after that event or after the issuance of the final
certificate of occupancy of the nonresidential development, whichever
is later.
(5)
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Borough of Dunellen as a lien against the
real property of the owner.
A.
Upon the granting of a preliminary, final or other applicable approval,
for a development, the applicable approving authority shall direct
its staff to notify the construction official responsible for the
issuance of a building permit.
B.
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF "State of New Jersey Nonresidential
Development Certification/Exemption" to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
C.
The construction official responsible for the issuance of a building
permit shall notify the local Tax Assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
D.
Within 90 days of receipt of that notice, the municipal Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
E.
The construction official responsible for the issuance of a final
certificate of occupancy notifies the local Assessor of any and all
requests for the scheduling of a final inspection on property which
is subject to a development fee.
F.
Within 10 business days of a request for the scheduling of a final
inspection, the municipal Assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development;
calculate the development fee; and thereafter notify the developer
of the amount of the fee.
G.
Should the Borough of Dunellen 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).
H.
50% of the development fee shall be collected at the time of issuance
of the building permit. The remaining portion shall be collected at
the issuance of the certificate of occupancy. The developer shall
be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of certificate
of occupancy.
I.
Appeal of development fees.
(1)
A developer may challenge residential development fees imposed by
filing a challenge with the County Board of Taxation. Pending a review
and determination by the Board, collected fees shall be placed in
an interest bearing escrow account by the Borough of Dunellen. Appeals
from a determination of the Board may be made to the tax court in
accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
(2)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest bearing escrow account by the Borough of
Dunellen or by the state, as the case may be. Appeals from a determination
of the Director may be made to the tax court in accordance with the
provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1
et seq., within 90 days after the date of such determination. Interest
earned on amounts escrowed shall be credited to the prevailing party.
A.
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Municipal Clerk/Municipal Housing Liaison
for the purpose of depositing development fees collected from residential
and nonresidential developers and proceeds from the sale of units
with extinguished controls.
B.
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development handicapped
accessible;
(3)
Rental income from municipally operated units;
(4)
Repayments from affordable housing program loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with the Borough of Dunellen's
affordable housing program.
C.
Within seven days from the opening of the trust fund account, the
Borough of Dunellen shall provide COAH with written authorization,
in the form of a three-party escrow agreement between the municipality,
the bank, and COAH to permit COAH to direct the disbursement of the
funds as provided for in N.J.A.C. 5:93-8.16.[1]
[1]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
D.
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by COAH or a court
of competent jurisdiction.
A.
The expenditure of all funds shall conform to a spending plan approved
by COAH or a court of competent jurisdiction. Funds deposited in the
housing trust fund may be used for any activity approved by COAH or
the court to address the Borough of Dunellen's fair share obligation
and may be set up as a grant or revolving loan program. Such activities
include, but are not limited to: preservation or purchase of housing
for the purpose of maintaining or implementing affordability controls,
rehabilitation, new construction of affordable housing units and related
costs, accessory apartment, market to affordable, or regional housing
partnership programs, conversion of existing nonresidential buildings
to create new affordable units, green building strategies designed
to be cost saving and in accordance with accepted national or state
standards, purchase of land for affordable housing, improvement of
land to be used for affordable housing, extensions or improvements
of roads and infrastructure to affordable housing sites, financial
assistance designed to increase affordability, administration necessary
for implementation of the Housing Element and Fair Share Plan, or
any other activity as permitted pursuant to N.J.A.C. 5:93-8.6[1] and specified in the approved spending plan.
[1]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
B.
Funds shall not be expended to reimburse the Borough of Dunellen
for past housing activities.
C.
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the municipal Fair Share
Plan. One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
(1)
Affordability assistance programs may include down payment assistance,
security deposit assistance, low-interest loans, rental assistance,
assistance with homeowners' association or condominium fees and
special assessments, and assistance with emergency repairs.
(2)
Affordability assistance to households earning 30% or less of median
income may include buying down the cost of low- or moderate-income
units in the municipal Fair Share Plan to make them affordable to
households earning 30% or less of median income.
(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.
The Borough of Dunellen 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. 5:93-8.16.[2]
[2]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
E.
No more than 20% of all revenues collected from development fees,
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or consultant fees necessary
to develop or implement a new construction program, a Housing Element
and Fair Share Plan, and/or an affirmative marketing program. In the
case of a rehabilitation program, no more than 20% of the revenues
collected from development fees shall be expended for such administrative
expenses. Administrative funds may be used for income qualification
of households, monitoring the turnover of sale and rental units, and
compliance with monitoring requirements. Legal or other fees related
to litigation opposing affordable housing sites or objecting to the
Council's regulations and/or action are not eligible uses of
the Affordable Housing Trust Fund.
The Borough of Dunellen shall complete and return to COAH, or
a court of competent jurisdiction as required, all monitoring forms
included in monitoring requirements related to the collection of development
fees from residential and nonresidential developers, payments in lieu
of constructing affordable units on site, funds from the sale of units
with extinguished controls, barrier free escrow funds, rental income,
repayments from affordable housing program loans, and any other funds
collected in connection with Dunellen's housing program, as well
as to the expenditure of revenues and implementation of the plan certified
by COAH or a court of competent jurisdiction. All monitoring reports
shall be completed on forms designed by COAH or a court of competent
jurisdiction.
The ability for the Borough of Dunellen to impose, collect and
expend development fees shall expire with its substantive certification
unless the Borough of Dunellen has filed an adopted Housing Element
and Fair Share Plan with COAH or a court of competent jurisdiction,
has petitioned for substantive certification, and has received COAH's
or the court's approval of its development fee ordinance. If
the Borough of Dunellen fails to renew its ability to impose and collect
development fees prior to the expiration of substantive certification,
it may be subject to forfeiture of any or all funds remaining within
its municipal trust fund. Any funds so forfeited shall be deposited
into the "New Jersey Affordable Housing Trust Fund" established pursuant
to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Borough
of Dunellen shall not impose a residential development fee on a development
that receives preliminary or final site plan approval after the expiration
of its substantive certification or judgment of compliance, nor shall
the Borough of Dunellen retroactively impose a development fee on
such a development. The Borough of Dunellen shall not expend development
fees after the expiration of its substantive certification or judgment
of compliance.
[Adopted 5-16-2016 by Ord. No. 2016-09]
A.
This article is intended to assure that low- and moderate-income
units ("affordable units") are created with controls on affordability
over time and that low- and moderate-income households shall occupy
these units. This article shall apply except where inconsistent with
applicable law.
B.
The Borough of Dunellen Planning 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 Fair Share Plan has been endorsed by the governing
body. The Fair Share Plan describes the ways the Borough of Dunellen
shall address its fair share for low- and moderate-income housing
as documented in the Housing Element and outlined in the terms of
the settlement agreement between the Borough and Fair Share Housing
Center (FSHC) in the Matter of the Application of the Borough of Dunellen,
County of Middlesex, Docket No. MID-L3947-15 (the "settlement agreement").
C.
This article implements the Borough's Fair Share Plan and addresses
the requirements of the Court and the terms of the settlement agreement.
D.
The Borough of Dunellen shall track the status of the implementation
of the Housing Element and Fair Share Plan. Any plan evaluation report
of the Housing Element and Fair Share Plan shall be available to the
public at the Borough of Dunellen Municipal Building, Borough Clerk's
Office, 355 North Avenue, Dunellen, New Jersey.
The following terms when used in this article shall have the
meanings given in this section:
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.[1]
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. 5:93-9[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. 5:93-5[5], and/or funded through an affordable housing trust fund.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development where the unit is situated
are 62 years or older; or
At least 80% of the units are occupied by one person that is
55 years or older; or
The development has been designated by the Secretary of the
U.S. Department of Housing and Urban Development as "housing for older
persons" as defined in Section 807(b)(2) of the Fair Housing Act,
42 U.S.C.A. § 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 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.
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.
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 the Department.
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 the Department's adopted regional income limits
published annually by the Department.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.1 et seq.
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.
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.
[1]
Editor's Note: The accessibility regulations, other than recreation,
shall be found in Chapter 11 of the building subcode, as amended,
at N.J.A.C. 5:23-3.14(b).
[2]
Editor's Note: N.J.A.C. 5:91 expired on 4-2-2008.
[3]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
[4]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
[5]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
The Borough of Dunellen will use the following mechanisms to
satisfy its affordable housing obligation:
A.
A rehabilitation program.
(1)
The Borough of Dunellen will continue to participate in Middlesex
County's Housing First rehabilitation program to renovate a minimum
of 12 deficient housing units occupied by low- and moderate-income
households such that, after rehabilitation, these units will comply
with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28.
(2)
Both owner occupied and renter occupied units shall be eligible for
rehabilitation funds through the County Housing First program. Information
and procedures governing the Housing First program can be found at:
http://www.co.middlesex.nj.us/Government/Departments/CS/Pages/Housing/Housin
g%20and%20Socia%201Services.aspx or by writing to Coming Home of Middlesex
County, Inc., c/o Eileen O'Donnell, Executive Director, 75 Bayard
Street, 2nd Floor, New Brunswick, NJ 08901.
(3)
All rehabilitated rental units shall remain affordable to low- and
moderate-income households for a period of 10 years (the control period).
Owner-occupied units shall remain affordable to low- and moderate-income
households for a period of six years. For owner-occupied units, the
control period will be enforced with a lien and for renter occupied
units the control period will be enforced with a deed restriction.
(4)
The Borough of Dunellen shall dedicate a minimum of $10,000 for each
unit to be rehabilitated through this program, reflecting the minimum
hard cost of rehabilitation for each unit.
(5)
The Borough of Dunellen shall adopt a resolution committing to fund
any shortfall in the rehabilitation programs for the Borough.
(6)
The Borough of Dunellen shall designate, subject to the approval
of the Court, one or more Administrative Agents to administer the
rehabilitation program in accordance with N.J.A.C. 5:91 and N.J.A.C.
5:93. The Administrative Agent(s) shall provide a rehabilitation manual
for the owner occupancy rehabilitation program and a rehabilitation
manual for the rental occupancy rehabilitation program to be adopted
by resolution of the governing body and subject to approval of the
Court. Both rehabilitation manuals shall be available for public inspection
in the Office of the Municipal Clerk and in the office(s) of the Administrative
Agent(s).
(7)
Units in a rehabilitation program shall be exempt from N.J.A.C. 5:93-9[1] and the Uniform Housing Affordability Controls (UHAC),
but shall be administered in accordance with the following:
(a)
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is re-rented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a low- or moderate-income household at an affordable rent
and affirmatively marketed pursuant to N.J.A.C. 5:93-9 and UHAC.
(b)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to N.J.A.C. 5:93-9 and UHAC.
(c)
Rents in rehabilitated units may increase annually based on
the standards in N.J.A.C. 5:93-9.
(d)
Applicant and/or tenant households shall be certified as income-eligible
in accordance with N.J.A.C. 5:93-9 and UHAC, except that households
in owner occupied units shall be exempt from the regional asset limit.
[1]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
B.
Inclusionary zoning.
(1)
To implement the fair share plan in a manner consistent with the
terms of the settlement agreement, ensure the efficient use of land
through compact forms of development and to create realistic opportunities
for the construction of affordable housing, inclusionary zoning shall
be permitted on the following properties consistent with the provisions
of the Amended and Restated Dunellen Downtown Redevelopment Plan,
Phase I, the Borough of Dunellen's Housing Plan Element and Fair
Share Plan, and the terms of the settlement agreement:
(a)
Block 85, Lot 1 shall require residential development at a presumptive
maximum gross density of 21 units per acre with a presumptive minimum
affordable housing set-aside of 15% of the total number of units in
the development. A minimum of 58 affordable non-age-restricted rental
dwelling units shall be provided on the site.
(b)
Block 70, Lots 13 and 13.01 shall permit residential development
at a presumptive maximum gross density of 20 units per acre. A presumptive
minimum affordable housing set-aside of 15% of the total number of
rental units in the development shall be required for any residential
development. A presumptive minimum affordable housing set-aside of
20% of the total number of for-sale units in the development shall
be required for any residential development.
(c)
Block 69, Lots 1, 1.01, 2, 2.01 and 3 shall permit residential
development at a presumptive maximum gross density of 20 units per
acre. A presumptive minimum affordable housing set-aside of 15% of
the total number of rental units in the development shall be required
for any residential development. A presumptive minimum affordable
housing set-aside of 20% of the total number of for-sale units in
the development shall be required for any residential development.
(d)
Residential development at a presumptive maximum gross density
of 20 units per acre with minimum affordable housing set-asides of
15% of the total number of rental units and 20% of the total number
of for-sale units in a development shall be permitted on the following
properties identified as "Remainder Parcels" in the Amended and Restated
Dunellen Downtown Redevelopment Plan, Phase I:
|
Block Number
|
Lot Number
|
|---|---|
|
1
|
14, 15.01, 15.02, 16, 17, 18, 19, 20, 21, 22, 23
|
|
2
|
10, 11.01, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20
|
|
32
|
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.01, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 24.01, 25, 26, 27, 28
|
|
33
|
14, 14.01, 15, 16, 17, 18, 19, 20, 21, 22, 23
|
|
34
|
10.01, 22, 23, 24, 24.01, 25, 26, 27.01, 27.02, 28, 28.02 29,
30, 31, 32, 33, 34, 35, 36, 37, 38, 38.01
|
|
48
|
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28
|
|
49
|
25, 26, 27.01, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39.01,
39.02, 40, 41, 43, 44
|
|
50
|
1, 2, 3, 4, 5, 6
|
|
51
|
1, 2 and 3 - NJ Transit property
|
|
65
|
1
|
|
66
|
1, 2, 3, 4, 5, 6.01, 7, 8, 9, 10.01, 10.02, 11, 12, 13, 14,
15.01, 15.02, 16, 17, 17.01, 18, 19, 20
|
|
86
|
1, 2, 3, 4, 4.02, 4.03, and 5
|
(2)
Phasing. Inclusionary developments shall be subject to the following
schedule, except where an alternate phasing schedule has been incorporated
into a development or redevelopment agreement:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percentage of Low- and Moderate-Income Units Completed
|
|---|---|
|
0%
|
10%
|
|
25% + 1
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
(3)
Design. In inclusionary developments, to the extent possible, low-
and moderate-income units shall be integrated with the market units.
(4)
Payments-in-lieu and off-site construction. The standards for the
collection of payments-in-lieu of constructing affordable units or
standards for constructing affordable units off-site, shall be in
accordance with N.J.A.C. 5:93-8.[2]
[2]
Editor's Note: N.J.A.C. 5:93-1.1 et seq., entitled "Substantive
Rules of the New Jersey Council on Affordable Housing for the Period
Beginning on June 6, 1994" expired 10-16-2016.
(5)
Utilities. Affordable units shall utilize the same type of heating
source as market units within the affordable development.
The following general guidelines apply to all newly constructed
developments that contain low- and moderate-income housing units,
including any currently unanticipated future developments that will
provide low- and moderate-income housing units.
A.
Low/moderate split and bedroom distribution of affordable housing
units:
(1)
The fair share obligation shall be divided equally between low- and
moderate-income units, except that where there is an odd number of
affordable housing units, the extra unit shall be a low-income unit.
(2)
In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be low-income units.
(3)
13% of all units shall be designated as very-low-income households,
with at least 50% of all very-low-income units being available to
families. Very-low-income units shall be considered low-income units
for the purposes of evaluating compliance with the required low/moderate-income
unit splits, bedroom distribution, and phasing requirements of this
article.
(4)
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
(b)
At least 30% of all low- and moderate-income units shall be
two bedroom units;
(c)
At least 20% of all low- and moderate-income units shall be
three bedroom units; and
(d)
The remaining units may be allocated among two and three bedroom
units at the discretion of the developer.
(5)
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.
B.
Accessibility requirements.
(1)
The first floor of all restricted townhouse dwelling units and all
restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7.
(2)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
(a)
An adaptable toilet and bathing facility on the first floor;
(b)
An adaptable kitchen on the first floor;
(c)
An interior accessible route of travel on the first floor;
(d)
An interior accessible route of travel shall not be required
between stories within an individual unit;
(e)
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
(f)
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that the Borough of Dunellen has collected funds
from the developer sufficient to make 10% of the adaptable entrances
in the development accessible:
[1]
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]
To this end, the builder of restricted units shall deposit funds
within the Borough of Dunellen's affordable housing trust fund
sufficient to install accessible entrances in 10% of the affordable
units that have been constructed with adaptable entrances.
[3]
The funds deposited under § 89-14B(2)(f)[2] above shall be used by the Borough of Dunellen 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.
[4]
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 Dunellen.
[5]
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 Dunellen'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.
[6]
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is site impracticable to meet
the requirements. Determinations of site impracticability shall be
in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
C.
Maximum rents and sales prices.
(1)
In establishing rents and sales prices of affordable housing units,
the administrative agent shall follow the procedures set forth in
UHAC utilizing the regional income limits established by the New Jersey
Department of Community Affairs (DCA) or other agency as required
by the Court.
(2)
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted low- and
moderate-income units shall be affordable to households earning no
more than 52% of median income.
(3)
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units.
(a)
At least 13% of all low- and moderate-income dwelling units
shall be affordable to households earning no more than 30% of median
income.
(4)
The maximum sales price of restricted ownership units within each
affordable development shall be affordable to households earning no
more than 70% of median income, and each affordable development must
achieve an affordability average of 55% for restricted ownership units;
in achieving this affordability average, moderate-income ownership
units must be available for at least three different prices for each
bedroom type, and low-income ownership units must be available for
at least two different prices for each bedroom type.
(5)
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
used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a 1 1/2 person
household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a 4 1/2 person
household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
(6)
In determining the initial rents for compliance with the affordability
average requirements for restricted units in assisted living facilities,
the following standards shall be used:
(7)
The initial purchase price for all restricted ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowner and private mortgage insurance and condominium or homeowner
association fees do not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4,
as may be amended and supplemented; provided, however, that the price
shall be subject to the affordability average requirement of N.J.A.C.
5:80-26.3, as may be amended and supplemented.
(8)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
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.
(9)
The price of owner-occupied low- and moderate-income units may increase
annually based on the percentage increase in the regional median income
limit for each housing region. In no event shall the maximum resale
price established by the administrative agent be lower than the last
recorded purchase price.
(10)
The rent of low- and moderate-income units may be increased
annually based on the percentage increase in the Housing Consumer
Price Index for the United States. This increase shall not exceed
9% in any one year. Rents for units constructed pursuant to low-income
housing tax credit regulations shall be indexed pursuant to the regulations
governing low-income housing tax credits.
(11)
Utilities. 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.
A.
The Borough of Dunellen shall adopt by resolution an Affirmative
Marketing Plan, subject to approval of the Department, compliant with
N.J.A.C. 5:80-26.15, as may be amended and supplemented.
B.
The affirmative marketing plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to housing units which are being marketed
by a developer, sponsor or owner of affordable housing. The affirmative
marketing plan is 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 Department Housing Region 3 and covers the period of deed
restriction.
C.
Optional. The affirmative marketing plan shall provide a regional
preference for all households that live and/or work in the Department
Housing Region 3 comprised of Hunterdon, Middlesex, and Somerset Counties.
D.
The Administrative Agent designated by the Borough of Dunellen shall
assure the affirmative marketing of all affordable units consistent
with the Affirmative Marketing Plan for the municipality.
E.
In implementing the affirmative marketing plan, the Administrative
Agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
F.
The affirmative marketing process for available affordable units
shall begin at least four months prior to the expected date of occupancy.
G.
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 Dunellen.
A.
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:
B.
Additional provisions related to occupancy standards (if any) shall
be provided in the municipal Operating Manual.
A.
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this article until the Borough of Dunellen elects to release the
unit from such requirements however, and prior to such an election,
a restricted ownership unit must remain subject to the requirements
of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at
least 30 years.
B.
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
C.
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the administrative agent shall determine
the restricted price for the unit and shall also determine the non-restricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value.
D.
At the time of the first sale of the unit, the purchaser shall execute
and deliver to the Administrative Agent a recapture note obligating
the purchaser (as well as the purchaser's heirs, successors and
assigns) to repay, upon the first non-exempt sale after the unit's
release from the requirements of this article, an amount equal to
the difference between the unit's non-restricted fair market
value and its restricted price, and the recapture note shall be secured
by a recapture lien evidenced by a duly recorded mortgage on the unit.
E.
The affordability controls set forth in this article shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
F.
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.
Price restrictions for restricted ownership units shall be in
accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
including:
A.
The initial purchase price for a restricted ownership unit shall
be approved by the Administrative Agent.
B.
The Administrative Agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
C.
The 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.
D.
The owners of restricted ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of capital improvements. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
A.
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income and moderate-income ownership units shall be reserved for households
with a gross household income less than 80% of median income.
B.
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.
A.
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.
B.
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).
A.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this article until the Borough of Dunellen elects to release the
unit from such requirements pursuant to action taken in compliance
with N.J.A.C. 5:80-26.1, as may be amended and supplemented, and prior
to such an election, a restricted rental unit must remain subject
to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented,
for at least 30 years.
B.
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 Middlesex. A copy of the filed document shall be
provided to the Administrative Agent within 30 days of the receipt
of a Certificate of Occupancy.
C.
A restricted rental unit shall remain subject to the affordability
controls of this article, despite the occurrence of any of the following
events:
A.
A written lease shall be required for all restricted rental units,
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.
B.
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the Administrative Agent.
C.
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the Administrative Agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this article.
A.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(1)
Very-low-income rental units shall be reserved for households with
a gross household income less than or equal to 30% of median income.
(2)
Low-income rental units shall be reserved for households with a gross
household income less than or equal to 50% of median income.
(3)
Moderate-income rental units shall be reserved for households with
a gross household income less than 80% of median income.
B.
The Administrative Agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(1)
The household currently pays more than 35% (40% for households eligible
for age-restricted units) of its gross household income for rent,
and the proposed rent will reduce its housing costs;
(2)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(3)
The household is currently in substandard or overcrowded living conditions;
(4)
The household documents the existence of assets with which the household
proposes to supplement the rent payments; or
(5)
The household documents proposed third-party assistance from an outside
source such as a family member in a form acceptable to the Administrative
Agent and the owner of the unit.
A.
The position of Municipal Housing Liaison (MHL) for the Borough of
Dunellen is established by this article. The Borough Council shall
make the actual appointment of the MHL by means of a resolution.
(1)
The MHL must be either a full-time or part-time employee of Borough
of Dunellen.
(2)
The person appointed as the MHL must be reported to the Department.
(3)
The MHL must meet all the requirements for qualifications, including
initial and periodic training.
(4)
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of Dunellen, including the following responsibilities which may not
be contracted out to the Administrative Agent:
(a)
Serving as the municipality's primary point of contact
for all inquiries from the State, affordable housing providers, Administrative
Agents and interested households;
(b)
The implementation of the Affirmative Marketing Plan and affordability
controls.
(c)
When applicable, supervising any contracting Administrative
Agent.
(d)
Monitoring the status of all restricted units in the Borough
of Dunellen's Fair Share Plan;
(e)
Compiling, verifying and submitting annual reports as required;
(f)
Coordinating meetings with affordable housing providers and
Administrative Agents, as applicable; and
(g)
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by the Department.
B.
C.
An Operating Manual shall be provided by the Administrative Agent(s)
to be adopted by resolution of the governing body. 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).
D.
The Administrative Agent shall perform the duties and responsibilities
of an administrative agent as are set forth in UHAC, including those
set forth in N.J.A.C. 5:80-26.14, 16 and 18 thereof, which includes:
(1)
Attending continuing education opportunities on affordability controls,
compliance monitoring, and affirmative marketing as offered or approved
by the Department;
(2)
Affirmative marketing;
(3)
Household certification;
(4)
Affordability controls;
(5)
Records retention;
(6)
Resale and re-rental;
(7)
Processing requests from unit owners; and
(8)
Enforcement, though the ultimate responsibility for retaining controls
on the units rests with the municipality.
(9)
The Administrative Agent shall have authority to take all actions
necessary and appropriate to carry out its responsibilities, hereunder.
A.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant the municipality
shall have all remedies provided at law or equity, including, but
not limited to, foreclosure, tenant eviction, 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.
B.
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
(1)
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation, or violations, of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
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:
(a)
A fine of not more than $10,000 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;
(b)
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 Dunellen Affordable Housing Trust
Fund of the gross amount of rent illegally collected;
(c)
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.
(2)
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.
C.
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 attorneys' fees. The violating owner shall have the right
to possession terminated as well as the title conveyed pursuant to
the Sheriff's sale.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
Appeals from all decisions of an Administrative Agent designated
pursuant to this article shall be filed in writing with the Commissioner
of the Department.
