A.
This chapter is intended to assure that very-low-, low-, and moderate-income
units ("affordable units") are created with controls on affordability
and that very-low-, low-, and moderate-income households shall occupy
these units. This chapter shall apply except where inconsistent with
applicable law.
B.
The Borough of Upper Saddle River 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. (hereinafter "Fair Share Plan"). The
Fair Share Plan was endorsed by the Borough Council. The Fair Share
Plan describes how the Borough of Upper Saddle River shall address
its fair share of very-low-, low-, and moderate-income housing as
documented in the Fair Share Plan itself, the settlement agreement
entered into between the Borough and the Fair Share Housing Center
("FSHC") on January 23, 2020 (hereinafter "FSHC settlement agreement"),
and approved by the Superior Court at a properly noticed fairness
hearing held on June 26, 2020.
C.
The Borough of Upper Saddle River shall track the status of the implementation
of the Fair Share Plan.
The Borough of Upper Saddle River shall comply with the following
monitoring and reporting requirements regarding the status of the
implementation of its Superior Court-approved Housing Element and
Fair Share Plan:
A.
Beginning one year after the entry of the Borough's Round 3
judgment of compliance and repose, and on every anniversary of that
date through 2025, the Borough shall provide an annual report of its
Affordable Housing Trust Fund activity to the New Jersey Department
of Community Affairs, Council on Affordable Housing, or Local Government
Services, or other entity designated by the State of New Jersey, with
a copy provided to the Fair Share Housing Center (FSHC) and posted
on the municipal website, using forms developed for this purpose by
the New Jersey Department of Community Affairs (NJDCA), Council on
Affordable Housing (COAH), or Local Government Services (NJLGS). The
report shall include an accounting of all Affordable Housing Trust
Fund activity, including the source and amount of funds collected
and the amount and purpose for which any funds have been expended.
B.
Beginning one year after the entry of the Borough's Round 3
judgment of compliance and repose, and on every anniversary of that
date through 2025, the Borough agrees to provide an annual report
of the status of all affordable housing activity within the municipality
through posting on the municipal website, with a copy of such posting
provided to the Fair Share Housing Center, using forms previously
developed for this purpose by COAH, or any other forms endorsed by
the Superior Court-appointed Special Master and FSHC.
C.
The Fair Housing Act includes two provisions regarding action to
be taken by the Borough during its ten-year repose period. The Borough
will comply with those provisions as follows:
(1)
For the midpoint realistic opportunity review that was due on July
1, 2020, as required pursuant to N.J.S.A. 52:27D-313, the Borough
posted on its municipal website, with a copy provided to the Fair
Share Housing Center, a status report as to its implementation of
its plan and an analysis of whether any unbuilt sites or unfulfilled
mechanisms continue to present a realistic opportunity and whether
the mechanisms to meet unmet need should be revised or supplemented.
Such posting invited any interested party to submit comments to the
Borough, with a copy to the Fair Share Housing Center, regarding whether
any sites no longer present a realistic opportunity and should be
replaced and whether the mechanisms to meet unmet need should be revised
or supplemented. Any interested party was able by motion to request
a hearing before the Superior Court regarding these issues.
(2)
For the review of very-low-income housing requirements required by
N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary of
the entry of the Borough's judgement of compliance and repose,
and every third year thereafter, the Borough will post on its municipal
website, with a copy provided to the Fair Share Housing Center, a
status report as to its satisfaction of its very-low-income requirements,
including the family very-low-income requirements referenced herein.
Such posting shall invite any interested party to submit comments
to the Borough and the Fair Share Housing Center on the issue of whether
the Borough has complied with its very-low-income housing obligation
under the terms of this settlement.
(3)
In addition to the foregoing postings, the Borough may also elect
to file copies of its reports with COAH or its successor agency at
the state level.
The following terms when used in this chapter 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.) as has been subsequently amended.
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity designated by the Borough responsible for the
administration of affordable units in accordance with this chapter,
applicable COAH regulations and the Uniform Housing Affordability
Controls ("UHAC")(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 by COAH in its applicable regulations or an equivalent
controlling New Jersey state agency; 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 Borough's 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 the Borough's Fair Share Plan prepared
or implemented to address the Borough's fair share obligation.
A housing unit proposed or created pursuant to the Act, credited
pursuant to applicable COAH regulations, the FSHC settlement agreement,
or an order of the Superior Court.
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. § 3607.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include, but are not limited
to, transitional facilities for the homeless; Class A, B, C, D, and
E boarding homes as regulated by the State of New Jersey Department
of Community Affairs; residential health care facilities as regulated
by the New Jersey Department of Health; group homes for the developmentally
disabled and mentally ill as licensed and/or regulated by the New
Jersey Department of Human Services; and congregate living arrangements.
A facility 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 very-low-income household, low-income household or moderate-income
household.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act, which previously had primary jurisdiction
for the administration of housing obligations in accordance with sound
regional planning consideration in the state. Pursuant to In the Matter
of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council
on Affordable Housing, 221 N.J. (2015), the New Jersey Supreme Court
returned primary jurisdiction over affordable housing matters to the
trial courts. As such, until and unless COAH adopts new regulations
or a new statute is passed, any and all references to COAH shall mean
the trial courts or any agency that supersedes COAH.
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, entity, 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 monetary obligation imposed and paid by a developer pursuant
to this chapter or state law, which money is to be used as permitted
by the rules of the New Jersey Council on Affordable Housing or other
applicable law, in order to address affordable housing needs.
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 C. 54:1-35c).
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.
The employee charged by the governing body with the responsibility
for oversight and administration of the affordable housing program
for Upper Saddle River.
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 COAH, a successor entity or established by the
court.
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.
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 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.
A.
The provisions of this chapter shall apply to all affordable housing
developments and affordable housing units that currently exist and
that are proposed to be created within the Borough of Upper Saddle
River pursuant to the Borough's most recently adopted Housing
Element and Fair Share Plan.
B.
This chapter shall apply to all 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.
The Borough of Upper Saddle River and FSHC have agreed that the Borough's
Round 3 (1999 to 2025) indigenous need rehabilitation obligation is
zero units. While the Borough does not have any required third-round
rehabilitation obligation, the creation or administration of any rehabilitation
units shall comply with the New Jersey State Housing Code pursuant
to N.J.A.C. 5:28.
B.
All rehabilitated rental and owner-occupied units shall remain affordable
to low- and moderate-income households for a period of 10 years (the
control period). For owner-occupied units, the control period will
be enforced with a lien, and for renter-occupied units the control
period will be enforced with a deed restriction.
C.
Units in the rehabilitation programs shall be exempt from N.J.A.C.
5:93-9 and UHAC requirements, but shall be administered in accordance
with the following:
(1)
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is rerented 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.
(2)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to N.J.A.C. 5:93-9 and UHAC.
(3)
Rents in rehabilitated units may increase annually based on the standards
in N.J.A.C. 5:93-9 or the standards issued by a New Jersey administrative
agency with proper authority to issue such standards.
(4)
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.
A.
In inclusionary developments the following schedule shall be followed:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percentage of Low- and Moderate-Income Units Completed
|
|---|---|
|
25
|
0
|
|
25+1
|
10
|
|
50
|
50
|
|
75
|
75
|
|
90
|
100
|
B.
In inclusionary developments, to the extent possible, low- and moderate-income
units shall be integrated with the market units.
C.
In inclusionary developments, low- and moderate-income units shall
have access to all of the same common elements and facilities as the
market 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.
At least 13% of all restricted rental units within each bedroom distribution
shall be very-low-income units (affordable to a household earning
30% or less of regional median income by household size). The very-low-income
units shall be counted as part of the required number of low-income
units within the development. At least 50% of the very-low-income
units must be available to families.
(2)
At least 25% of the obligation shall be met through rental units,
including at least half in rental units available to families.
(3)
A maximum of 25% of the Borough's obligation may be met with
age-restricted units. At least half of all affordable units in the
Borough's plan shall be available to families.
(4)
In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be very-low- or low-income
units including that 13% shall be very-low-income.
(5)
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
(b)
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
(c)
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
(d)
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer and the Borough.
(6)
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
This standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
B.
Accessibility requirements.
(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 Sub Code, 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;
and
(b)
An adaptable kitchen on the first floor; and
(c)
An interior accessible route of travel on the first floor; and
(d)
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
and
(e)
If all of the foregoing requirements in Subsection B(2)(a) through (d) above cannot be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the terms of Subsection B(2)(a) through (d) above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit; and
(f)
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free SubCode, N.J.A.C.
5:23-7, or evidence that Upper Saddle River 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
into the Borough of Upper Saddle River's Affordable Housing Trust
Fund sufficient to install accessible entrances in 10% of the affordable
units that have been constructed with adaptable entrances.
[3]
The funds deposited under Subsection B(2)(f) above shall be used by the Borough of Upper Saddle River for the sole purpose of making the adaptable entrance of an affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[4]
The developer of the restricted units shall submit a design
plan and cost estimate to the Construction Official of the Borough
of Upper Saddle River for the conversion of adaptable to accessible
entrances.
[5]
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible 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's Affordable Housing Trust Fund in care
of the Borough Chief Financial Officer who shall ensure that the funds
are deposited into the Affordable Housing Trust Fund and appropriately
earmarked.
(g)
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.
Design.
(1)
In inclusionary developments, very-low-, low- and moderate-income
units shall be integrated with the market units to the extent possible.
(2)
In inclusionary developments, very-low-, low- and moderate-income
units shall have access to all of the same common elements and facilities
as the market units.
D.
Maximum rents and sales prices.
(1)
In establishing rents and sales prices of affordable housing units,
the Administrative Agent shall follow the procedures set forth in
UHAC, utilizing the most recently published regional weighted average
of the uncapped Section 8 income limits published by HUD and by the
Superior 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 rental units
shall be affordable to households earning no more than 52% of median
income.
(3)
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units, provided that at least 13% of all low-
and moderate-income rental units shall be affordable to very-low-income
households, earning 30% or less of the regional median household income,
which very-low-income units shall be part of the low-income requirement.
(4)
The maximum sales price of restricted-ownership units within each
affordable development shall be affordable to households earning no
more than 70% of median income, and each affordable development must
achieve an affordability average of 55% for restricted-ownership units;
in achieving this affordability average, moderate-income ownership
units must be available for at least three different sales prices
for each bedroom type, and low-income ownership units must be available
for at least two different sales prices for each bedroom type.
(5)
In determining the initial sales prices and rent levels for compliance
with the affordability average requirements for restricted units other
than assisted-living facilities and age-restricted developments, the
following standards shall be used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
(6)
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units in
assisted-living facilities and age-restricted developments, the following
standards shall be used:
(7)
The initial purchase price for all restricted-ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowner and private mortgage insurance and condominium or homeowner
association fees do not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4,
as may be amended and supplemented; provided, however, that the price
shall be subject to the affordability average requirement of N.J.A.C.
5:80-26.3, as may be amended and supplemented.
(8)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
size household, including an allowance for tenant-paid utilities,
as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented;
provided, however, that the rent shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(9)
Income limits for all units that are part of the Borough's Housing
Element and Fair Share Plan, and 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:
(a)
The income limit for a moderate-income unit for a household
of four shall be 80% of the HUD determination of the median income
for COAH Region 1 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 median income for COAH Region 1 for a family of four. The income
limit for a very-low-income unit for a household of four shall be
30% of the HUD determination of the median income for COAH Region
1 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 the previous
year.
(10)
In establishing sale prices and rents of affordable housing units,
the Administrative Agent shall follow the procedures set forth in
UHAC, utilizing the regional income limits established by the Council:
(a)
The price of owner-occupied very-low-, low- and moderate-income units may increase annually based on the percentage increase in the regional median income limit for each housing region determined pursuant to Subsection D(9). In no event shall the maximum resale price established by the Administrative Agent be lower than the last recorded purchase price.
(b)
The rents of very-low-, low- and moderate-income units may be
increased annually based on the permitted percentage increase in the
Housing Consumer Price Index for the Central New Jersey 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.
A.
Affordable units shall utilize the same type of heating source as
market units within an inclusionary development.
B.
Tenant-paid utilities included in the utility allowance shall be
set forth in the lease and shall be consistent with the utility allowance
approved by the NJDCA for its Section 8 program.
In referring certified households to specific restricted units,
the Administrative Agent shall, to the extent feasible and without
causing an undue delay in the occupancy of a unit, strive to:
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 section for a period of at least 30 years, until the Borough
of Upper Saddle River takes action to release the unit from such requirements;
prior to such action, a restricted-ownership unit must remain subject
to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
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 Borough's Administrative
Agent, or an Administrative Agent appointed by a particular developer,
shall determine the restricted price for the unit and shall also determine
the nonrestricted, fair market value of the unit based on either an
appraisal or the unit's equalized assessed value without the
restrictions in place.
D.
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the Borough's Administrative Agent,
or an Administrative Agent appointed by a particular developer, a
recapture note obligating the purchaser (as well as the purchaser's
heirs, successors and assigns) to repay, upon the first nonexempt
sale after the unit's release from the restrictions set forth
in this section, an amount equal to the difference between the unit's
nonrestricted fair market value and its restricted price, and the
recapture note shall be secured by a recapture lien evidenced by a
duly recorded mortgage on the unit.
E.
The affordability controls set forth in this section 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 following the removal of the restrictions provided
under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
Price restrictions for restricted-ownership units shall be in
accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
including:
A.
The initial purchase price for a restricted-ownership unit shall
be approved by the Borough's Administrative Agent, or an Administrative
Agent appointed by a particular developer.
B.
The Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer, shall approve all resale prices,
in writing and in advance of the resale, to assure compliance with
the foregoing standards.
C.
The master deeds of inclusionary developments shall provide no distinction
between the condominium or homeowner association fees and special
assessments paid by low- and moderate-income purchasers and those
paid by market purchasers, unless the master deed for the inclusionary
project was executed prior to the enactment of UHAC.
D.
The owners of restricted-ownership units may apply to the Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer, to increase the maximum sales price for the unit on the
basis of anticipated capital improvements. Eligible capital improvements
shall be those that render the unit suitable for a larger household
or the addition of a bathroom.
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 eligible monthly income.
A.
Prior to incurring any indebtedness to be secured by a restricted-ownership
unit, the owner shall apply to the Borough's Administrative Agent,
or an Administrative Agent appointed by a particular developer, for
a determination in writing that the proposed indebtedness complies
with the provisions of this section, and the Borough's Administrative
Agent, or an Administrative Agent appointed by a particular developer,
shall issue such determination prior to the owner incurring such indebtedness.
B.
With the exception of first-purchase money mortgages, neither an
owner nor a lender shall at any time cause or permit the total indebtedness
secured by a restricted-ownership unit to exceed 95% of the maximum
allowable resale price of the unit, as such price is determined by
the Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer, in accordance with N.J.A.C. 5:80-26.6(b).
A.
The owners of restricted-ownership units may apply to the Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer, to increase the maximum sales price for the unit on the
basis of capital improvements made since the purchase of the unit.
Eligible capital improvements shall be those that render the unit
suitable for a larger household or that add an additional bathroom.
In no event shall the maximum sales price of an improved housing unit
exceed the limits of affordability for the larger household.
B.
Upon the resale of a restricted-ownership unit, all items of property
that are permanently affixed to the unit or were included when the
unit was initially restricted (for example, refrigerator, range, washer,
dryer, dishwasher, wall-to-wall carpeting) shall be included in the
maximum allowable resale price. Other items may be sold to the purchaser
at a reasonable price that has been approved by the Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer, at the time of the signing of the agreement to purchase.
The purchase of central air conditioning installed subsequent to the
initial sale of the unit and not included in the base price may be
made a condition of the unit resale, provided the price, which shall
be subject to ten-year, straight-line depreciation, has been approved
by the Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer. Unless otherwise approved by
the Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer, the purchase of any property
other than central air conditioning shall not be made a condition
of the unit resale. The owner and the purchaser must personally certify
at the time of closing that no unapproved transfer of funds for the
purpose of selling and receiving property has taken place at the time
of or as a condition of resale.
A.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this section for a period of at least 30 years, until the Borough
of Upper Saddle River takes action to release the unit from such requirements.
Prior to such action, a restricted rental unit must remain subject
to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
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 Bergen. A copy of the filed document shall be provided
to the Borough's 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 described in this section despite the occurrence of any of
the following events:
A.
A written lease shall be required for all restricted rental units,
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer.
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 Borough's Administrative Agent, or an
Administrative Agent appointed by a particular developer.
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 developer and/or landlord or to the Borough's
Administrative Agent appointed by a particular developer. If the fees
are paid to the Borough's Administrative Agent or an Administrative
Agent appointed by a particular developer, they are to be applied
to the costs of administering the controls applicable to the unit
as set forth in this section.
D.
No rent control ordinance or other pricing restriction shall be applicable
to either the market units or the affordable units in any development
in which at least 15% of the total number of dwelling units are restricted
rental units in compliance with this chapter.
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 the regional
median household income by household size.
(2)
Low-income rental units shall be reserved for households with a gross
household income less than or equal to 50% of the regional median
household income by household size.
(3)
Moderate-income rental units shall be reserved for households with
a gross household income less than 80% of the regional median household
income by household size.
B.
The Borough's Administrative Agent, or a qualified Administrative
Agent appointed by a particular developer, shall certify a household
as eligible for a restricted rental unit when the household is a very-low-income
household, low-income household or a moderate-income household, as
applicable to the unit, and the rent proposed for the unit does not
exceed 35% (40% for age-restricted units) of the household's
eligible monthly income as determined pursuant to N.J.A.C. 5:80-26.16,
as may be amended and supplemented; provided, however, that this limit
may be exceeded if one or more of the following circumstances exists:
(1)
The household currently pays more than 35% (40% for households eligible
for age-restricted units) of its gross household income for rent,
and the proposed rent will reduce its housing costs;
(2)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(3)
The household is currently in substandard or overcrowded living conditions;
(4)
The household documents the existence of assets with which the household
proposes to supplement the rent payments; or
(5)
The household documents reliable anticipated third-party assistance
from an outside source such as a family member in a form acceptable
to the Administrative Agent and the owner of the unit.
A.
The position of Municipal Housing Liaison (MHL) for the Borough of
Upper Saddle River is established by this section. The Borough 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 Upper
Saddle River.
(2)
The person appointed as the MHL must be reported to the Superior
Court and thereafter posted on the Borough's website.
(3)
The MHL must meet all the requirements for qualifications, including
initial and periodic training, if such training is made available
by COAH or the DCA.
(4)
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of Upper Saddle River, including the following responsibilities which
may not be contracted out to the Administrative Agent, or the Administrative
Agent appointed by a specific developer:
(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'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 Affordable Housing Professionals of New Jersey
(AHPNJ), if such continuing education opportunities are made available
by COAH or the DCA.
B.
Subject to the approval of the Superior Court, the Borough of Upper
Saddle River shall designate one or more Administrative Agent(s) to
administer and to affirmatively market the affordable units constructed
in the Borough in accordance with UHAC and this chapter.
An Administrative Agent may be either an independent entity
serving under contract to and reporting to the Borough, or reporting
to a specific individual developer. The fees of the Administrative
Agent shall be paid by the owners of the affordable units for which
the services of the Administrative Agent are required. The Borough
Administrative Agent shall monitor and work with any individual Administrative
Agents appointed by individual developers. The Administrative Agent(s)
shall perform the duties and responsibilities of an Administrative
Agent as set forth in UHAC, including those set forth in Sections
5:80-26.14, 16 and 18 thereof, which includes:
A.
Affirmative marketing.
(1)
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Affirmative Marketing Plan of
the Borough of Upper Saddle River and the provisions of N.J.A.C. 5:80-26.15;
and
(2)
Providing counseling or contracting to provide counseling services
to low- and moderate-income applicants on subjects such as budgeting,
credit issues, mortgage qualification, rental lease requirements,
and landlord/tenant law.
B.
Household certification.
(1)
Soliciting, scheduling, conducting and following up on interviews
with interested households;
(2)
Conducting interviews and obtaining sufficient documentation of gross
income and assets upon which to base a determination of income eligibility
for a low- or moderate-income unit;
(3)
Providing written notification to each applicant as to the determination
of eligibility or noneligibility;
(4)
Requiring that all certified applicants for restricted units execute
a certificate substantially in the form, as applicable, of either
the ownership or rental certificates set forth in Appendixes J and
K of N.J.A.C. 5:80-26.1 et seq.;
(5)
Creating and maintaining a referral list of eligible applicant households
living in the housing region and eligible applicant households with
members working in the housing region where the units are located;
(6)
Employing a random selection process as provided in the Affirmative
Marketing Plan of the Borough of Upper Saddle River when referring
households for certification to affordable units; and
(7)
Notifying the following entities of the availability of affordable
housing units in the Borough of Upper Saddle River: the Fair Share
Housing Center (510 Park Boulevard, Cherry Hill, NJ 08002); the New
Jersey State Conference of the NAACP; the Latino Action Network (P.O.
Box 943, Freehold, NJ 07728); East Orange NAACP (P.O. Box 1127, East
Orange, NJ 07019); Newark NAACP (P.O. Box 1262, Newark, NJ 07101);
Morris County NAACP (P.O. Box 2256, Morristown, NJ 07962); Elizabeth
NAACP (P.O. Box 6732, Elizabeth, NJ 07206); and the Supportive Housing
Association.
C.
Affordability controls.
(1)
Furnishing to attorneys or closing agents forms of deed restrictions
and mortgages for recording at the time of conveyance of title of
each restricted unit;
(2)
Creating and maintaining a file on each restricted unit for its control
period, including the recorded deed with restrictions, recorded mortgage
and note, as appropriate;
(3)
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Bergen
County Register of Deeds or the Bergen County Clerk's office
after the termination of the affordability controls for each restricted
unit;
(4)
Communicating with lenders regarding foreclosures; and
(5)
Ensuring the issuance of continuing certificates of occupancy or
certifications pursuant to N.J.A.C. 5:80-26.10.
D.
Resales and rerentals.
(1)
Instituting and maintaining an effective means of communicating information
between owners and the Borough's Administrative Agent, or any
Administrative Agent appointed by a specific developer, regarding
the availability of restricted units for resale or rerental; and
(2)
Instituting and maintaining an effective means of communicating information
to very-low-, low- and moderate-income households regarding the availability
of restricted units for resale or rerental.
E.
Processing requests from unit owners.
(1)
Reviewing and approving requests for determination from owners of
restricted units who wish to take out home equity loans or refinance
during the term of their ownership that the amount of indebtedness
to be incurred will not violate the terms of this section;
(2)
Reviewing and approving requests to increase sales prices from owners
of restricted units who wish to make capital improvements to the units
that would affect the selling price, such authorizations to be limited
to those improvements resulting in additional bedrooms or bathrooms
and the depreciated cost of central air-conditioning systems;
(3)
Notifying the Borough of an owner's intent to sell a restricted
unit; and
(4)
Making determinations on requests by owners of restricted units for
hardship waivers.
F.
Enforcement.
(1)
Securing annually from the Borough a list of all affordable housing
units for which tax bills are mailed to absentee owners, and notifying
all such owners that they must either move back to their unit or sell
it;
(2)
Securing from all developers and sponsors of restricted units, at
the earliest point of contact in the processing of the project or
development, written acknowledgement of the requirement that no restricted
unit can be offered, or in any other way committed, to any person,
other than a household duly certified to the unit by the Borough's
Administrative Agent, or any Administrative Agent appointed by a specific
developer;
(3)
Posting annually, in all rental properties (including two-family
homes), a notice as to the maximum permitted rent together with the
telephone number of the Borough's Administrative Agent, or any
Administrative Agent appointed by a specific developer, where complaints
of excess rent or other charges can be made;
(4)
Sending annual mailings to all owners of affordable dwelling units,
reminding them of the notices and requirements outlined in N.J.A.C.
5:80-26.18(d)4;
(5)
Establishing a program for diverting unlawful rent payments to the
Borough's Affordable Housing Trust Fund; and
(6)
Creating and publishing a written operating manual for each affordable
housing program administered by the Borough's Administrative
Agent, or any Administrative Agent appointed by a specific developer,
to be approved by the Borough Council and the Superior Court, setting
forth procedures for administering the affordability controls.
G.
Additional responsibilities.
(1)
The Administrative Agent shall have the authority to take all actions
necessary and appropriate to carry out its responsibilities hereunder.
(2)
The Administrative Agent shall prepare monitoring reports for submission
to the Municipal Housing Liaison in time to meet the court-approved
monitoring and reporting requirements in accordance with the deadlines
set forth in this section. The Borough's Administrative Agent
will be responsible for collecting monitoring information from any
Administrative Agents appointed by specific developers.
(3)
The Borough's Administrative Agent, or any Administrative Agent
appointed by a specific developer, shall attend continuing education
sessions on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
A.
The Borough of Upper Saddle River shall adopt by resolution an Affirmative
Marketing Plan that is 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 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 marketing activities toward
Housing Region 1 and is required to be followed throughout the period
of restriction.
C.
The Affirmative Marketing Plan shall provide a regional preference
for all households that live and/or work in Housing Region 1, comprised
of Bergen, Hudson, Passaic and Sussex Counties.
D.
The Borough has the ultimate responsibility for adopting the Affirmative
Marketing Plan and for the proper administration of the Affirmative
Marketing Program, including initial sales and rentals and resales
and rerentals. The Borough's Administrative Agent designated
by the Borough of Upper Saddle River, or any Administrative Agent
appointed by a specific developer, shall implement the Affirmative
Marketing Plan to assure the affirmative marketing of all affordable
units.
E.
In implementing the Affirmative Marketing Plan, the Borough's
Administrative Agent, or any Administrative Agent appointed by a specific
developer, shall provide a list of counseling services to very-low-,
low- and moderate-income applicants on subjects such as budgeting,
credit issues, mortgage qualification, rental lease requirements,
and landlord/tenant law.
F.
The Affirmative Marketing Plan shall describe the media to be used
in advertising and publicizing the availability of housing. In implementing
the Affirmative Marketing Plan, the Borough's Administrative
Agent, or any Administrative Agent appointed by a specific developer,
shall consider the use of language translations where appropriate.
G.
The affirmative marketing process for available affordable units
shall begin at least 120 days prior to the expected date of occupancy.
H.
Applications for affordable housing shall be available in several
locations, including, at a minimum, the county administration building
and/or the county library for each county within the housing region;
and the municipal building in which the units are located; and the
developer's rental office. Applications shall be mailed to prospective
applicants upon request.
I.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
A.
Upon the occurrence of a breach of any of the regulations governing
an affordable unit by an owner, developer or tenant, the Borough shall
have all remedies provided at law or equity, including but not limited
to, foreclosure, tenant eviction, a requirement for household recertification,
acceleration of all sums due under a mortgage, recoupment of any funds
from a sale in violation of the regulations, injunctive relief to
prevent further violation of the regulations, entry on the premises,
and specific performance.
B.
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the Borough
may take the following action(s) against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
(1)
The Borough may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation or violations of the regulations governing the
affordable housing unit. If the owner, developer or tenant is adjudged
by the Superior 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 $2,000 per day or imprisonment for a
period not to exceed 90 days, or both, provided that each and every
day that the violation continues or exists shall be considered a separate
and specific violation of these provisions and not a continuation
of the initial offense;
(b)
In the case of an owner who has rented a very-low-, low- or
moderate-income unit in violation of the regulations governing affordable
housing units, payment into the Borough of Upper Saddle River Affordable
Housing Trust Fund of the gross amount of rent illegally collected;
(c)
In the case of an owner who has rented a very-low-, 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 Borough may file a court action in the Superior Court seeking
a judgment that would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any such judgment shall be enforceable as if the same
were a judgment of default of the first-purchase money mortgage and
shall constitute a lien against the low- or moderate-income unit.
(a)
The judgment shall be enforceable, at the option of the Borough,
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 Borough,
including attorneys' fees. The violating owner shall have his
right to possession terminated as well as his title conveyed pursuant
to the Sheriff's sale.
(b)
The proceeds of the Sheriff's sale shall first be applied
to satisfy the first-purchase money mortgage lien and any prior liens
upon the low- and moderate-income unit. The excess, if any, shall
be applied to reimburse the Borough 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 Borough in full as aforesaid, the violating owner shall be personally
responsible for the full extent of such deficiency, in addition to
any and all costs incurred by the Borough 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 Borough 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 Borough 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 Borough. Any interest
accrued or earned on such balance while being held in escrow shall
belong to and shall be paid to the Borough, whether such balance shall
be paid to the owner or forfeited to the Borough.
(c)
Foreclosure by the Borough 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 very-low-, low- and moderate-income unit. Title shall
be conveyed to the purchaser at the Sheriff's sale, subject to
the restrictions and provisions of the regulations governing the affordable
housing unit. The owner determined to be in violation of the provisions
of this plan and from whom title and possession were taken by means
of the Sheriff's sale shall not be entitled to any right of redemption.
(d)
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the first-purchase money mortgage and any
prior liens, the Borough may acquire title to the very-low-, 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 very-low-, low-
and moderate-income unit could have been sold under the terms of the
regulations governing affordable housing units. This excess shall
be treated in the same manner as the excess which would have been
realized from an actual sale as previously described.
(e)
Failure of the very-low-, low- and moderate-income unit to be
either sold at the Sheriff's sale or acquired by the Borough
shall obligate the owner to accept an offer to purchase from any qualified
purchaser which may be referred to the owner by the Borough, with
such offer to purchase being equal to the maximum resale price of
the very-low-, low- and moderate-income unit as permitted by the regulations
governing affordable housing units.
(f)
The owner shall remain fully obligated, responsible and liable
for complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
Appeals from all decisions of an Administrative Agent appointed
pursuant to this chapter shall be filed in writing with the Superior
Court.
