[HISTORY: Adopted by the Common Council of the City of Burlington 2-4-2020 by Ord. No. 4-2020.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 70,
Affordable Housing, adopted 12-3-2019 by Ord. No. 17-2019.
The City of Burlington shall comply with the following monitoring
and reporting requirements regarding the status of the implementation
of its Court-approved Housing Element and Fair Share Plan:
A.Â
Beginning on October 31, 2019, and on every anniversary of that date
through July 1, 2025, the City agrees to provide annual reporting
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 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 reporting
shall include an accounting of all Affordable Housing Trust Fund activity,
including the source and amount of funds collected and the amount
and purpose for which any funds have been expended.
B.Â
Beginning on October 31, 2019, and on every anniversary of that date
through July 27, 2025, the City agrees to provide annual reporting
of the status of all affordable housing activity within the municipality
through posting on the municipal website with a copy of such posting
provided to Fair Share Housing Center, using forms previously developed
for this purpose by COAH or any other forms endorsed by the Special
Master and FSHC.
C.Â
By July 1, 2020, as required pursuant to N.J.S.A. 52:27D-313, the
City will post on its municipal website, with a copy provided to FSHC,
a status report as to its implementation of its plan and an analysis
of whether any unbuilt sites or unfulfilled mechanisms continue to
present a realistic opportunity and whether any mechanisms to meet
unmet need should be revised or supplemented. Such posting shall invite
any interested party to submit comments to the municipality, with
a copy to FSHC, regarding whether any sites no longer present a realistic
opportunity and should be replaced and whether any mechanisms to meet
unmet need should be revised or supplemented. Any interested party
may by motion request a hearing before the Court regarding these issues.
D.Â
By October 31, 2020, and every third year thereafter, as required
by N.J.S.A. 52:27D-329.1, the City will post on its municipal website,
with a copy provided to FSHC, a status report as to its satisfaction
of its very-low-income requirements, including its family very-low-income
requirements. Such posting shall invite any interested party to submit
comments to the municipality and FSHC on the issue of whether the
municipality has complied with its very-low-income and family very
low-income housing obligations.
The following terms when used in this chapter shall have the
meanings given in this section:
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.[1]
The entity designated by the City to administer affordable
units in accordance with this chapter, N.J.A.C. 5:93,[2] and UHAC (N.J.A.C. 5:80-26).
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which new restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent level that is within the means of a
low- or moderate-income household as defined within N.J.A.C. 5:93-7.4,[3] and, in the case of an ownership unit, that the sales
price for the unit conforms to the standards set forth in N.J.A.C.
5:80-26.6, as may be amended and supplemented, and, in the case of
a rental unit, that the rent for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A development included in or approved pursuant to the Housing
Element and Fair Share Plan or otherwise intended to address the City's
fair share obligation, and includes, but is not limited to, an inclusionary
development, a municipal construction project or a 100% affordable
housing development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act and
approved for crediting by the Court and/or funded through an affordable
housing trust fund.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development wherein the unit is situated
are 62 years of age or older; or
At least 80% of the units are occupied by one person who is
55 years of age 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 that is licensed by the New Jersey Department
of Health and Senior Services to provide apartment-style housing and
congregate dining and to assure that assisted living services are
available when needed for four or more adult persons unrelated to
the proprietor and that offers units containing, at a minimum, one
unfurnished room, a private bathroom, a kitchenette and a lockable
door on the unit entrance.
A household that has been certified by an Administrative
Agent as a low-income household or moderate-income household.
The Council on Affordable Housing, as established by the
New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
requires the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
included in a proposed development, including the holder of an option
to contract to purchase, or other person having an enforceable proprietary
interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
A development containing both affordable units and market-rate
units. This term includes, but is not limited to: new construction,
the conversion of a nonresidential structure to residential use and
the creation of new affordable units through the gut rehabilitation
or reconstruction of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the regional median household income by household
size.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building which
include, but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement and load-bearing structural
systems.
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable housing
region, as adopted annually by COAH or a successor entity approved
by the Court.
A household with a total gross annual household income in
excess of 50% but less than 80% of the regional median household income
by household size.
A restricted unit that is affordable to a moderate-income
household.
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class A
beneficiary and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by duly adopted Regional Income Limits published annually
by COAH or a successor entity.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
A dwelling unit, whether a rental unit or an ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as amended and supplemented, but does not include a market-rate unit
financed under UHORP or MONI.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the regional median household income by household
size.
A restricted unit that is affordable to a very-low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for purposes of a rehabilitation
program.
[1]
Editor’s Note: See now N.J.A.C. 5:23-3.14(b).
[2]
Editor's Note: In accordance with N.J.S.A. 52:14B–5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
[3]
Editor's Note: In accordance with N.J.S.A. 52:14B–5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
A.Â
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 City of Burlington pursuant
to the City's most recently adopted Housing Element and Fair Share
Plan.
B.Â
Moreover, 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, and including any developments funded with low-income-housing
tax credits.
C.Â
Burlington City shall require an affordable housing set-aside when
it permits a density bonus of 100% or more on land zoned for residential
development as of March 6, 2008. Nothing in this subsection precludes
the City from imposing an affordable housing set-aside in a development
not required to have a set-aside pursuant to this subsection consistent
with N.J.S.A. 52:27D-311(h) and other applicable law.
D.Â
Notwithstanding any provisions in this chapter to the contrary, a
5% affordable housing set-aside shall be imposed on any multifamily
developments associated with the two redevelopment sites as documented
in the FSHC Settlement Agreement at Exhibit B [U.S. Pipe (a/k/a McNeal
Mansion and Vicinity Redevelopment Area)] located at Block 226, Lots
1.03, 1.05-1.08 and Commerce Square (a/k/a Riverwalk Station) located
at Block 1, Lots 3.02 and 3.03. The affordable units will otherwise
comply with the provisions of this chapter.
E.Â
For inclusionary projects in which the low and moderate units are
to be offered for sale, the appropriate set-aside percentage is 20%;
for projects in which the low- and moderate-income units are to be
offered for rent, the appropriate set-aside percentage is 15%.
F.Â
This requirement does not create any entitlement for a property owner
or applicant for a zoning amendment, variance, or adoption of a redevelopment
plan or amended redevelopment plan in areas in need of redevelopment
or rehabilitation, or for approval of any particular proposed project.
This requirement does not apply to any sites or specific zones otherwise
identified in the Settlement Agreement or Fair Share Plan, for which
density and set-aside standards shall be governed by the specific
standards set forth therein.
G.Â
Set-aside ordinance.
(1)Â
Developers shall set aside a percentage of housing for low- and moderate-income
housing if the proposed development consists of five or more new residential
units in a multifamily context (including townhomes) and:
(a)Â
The permitted use of the property changes, either through a
zoning change, redevelopment plan (for an area in need of redevelopment
of rehabilitation) or use variance, from nonresidential to residential
and the residential zoning/approval permits a gross density of at
least six units per acre; or
(b)Â
The gross density of a site, with no affordable housing obligation,
changes through a zoning change, redevelopment plan (for an area in
need of redevelopment or rehabilitation), or "D" variance doubles
to six units per acre.
(2)Â
For inclusionary projects in which the low and moderate units are
to be offered for sale, the set-aside percentage is 20%; for projects
in which the low- and moderate-income units are to be offered for
rent, the set-aside percentage is 15%.
(3)Â
This requirement does not create any entitlement for a property owner
or applicant for a zoning amendment, variance, or adoption of a redevelopment
plan or amended redevelopment plan in areas in need of redevelopment
or rehabilitation, or for approval of any particular proposed project.
(4)Â
This requirement does not apply to any sites or specific zones otherwise
identified in the Settlement Agreement or Fair Share Plan, for which
density and set-aside standards shall be governed by the specific
standards set forth therein.
(5)Â
Redevelopment sites. Notwithstanding any provisions in this chapter
to the contrary, a 5% affordable housing set-aside shall be imposed
on any multifamily developments associated with the two redevelopment
sites as documented in the FSHC Settlement Agreement, dated March
6, 2018, and amended February 19, 2019 [U.S. Pipe (a/k/a McNeal Mansion
and Vicinity Redevelopment Area)], located at Block 226, Lots 1.03,
1.05-1.08 and Commerce Square (a/k/a Riverwalk Station) located at
Block 1, Lots 3.02 and 3.03. The affordable units will otherwise comply
with the provisions of this chapter.
A.Â
The administration of an alternative living arrangement shall be
in compliance with N.J.A.C. 5:93-5.8[1] and UHAC, with the following exceptions:
(1)Â
Affirmative marketing (N.J.A.C. 5:80-26.15); provided, however, that
the units or bedrooms may be affirmatively marketed by the provider
in accordance with an alternative plan approved by the Court;
(2)Â
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
[1]
Editor's Note: In accordance with N.J.S.A. 52:14B–5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
B.Â
With the exception of units established with capital funding through
a twenty-year operating contract with the Department of Human Services,
Division of Developmental Disabilities, alternative living arrangements
shall have at least thirty-year controls on affordability in accordance
with UHAC, unless an alternative commitment is approved by the Court.
C.Â
The service provider for the alternative living arrangement shall
act as the Administrative Agent for the purposes of administering
the affirmative marketing and affordability requirements for the alternative
living arrangement.
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
|
|---|---|
|
0
| |
|
25 + 1 unit
| |
|
50
| |
|
75
| |
|
90
|
100
|
A.Â
Low/moderate split and bedroom distribution of affordable housing
units:
(1)Â
The fair share obligation shall be divided equally between low- and
moderate-income units, except that where there is an odd number of
affordable housing units, the extra unit shall be a low-income unit.
At least 13% of all restricted rental units 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.
(2)Â
In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be very-low- or low-income
units.
(3)Â
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)Â
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
(b)Â
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
(c)Â
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
(d)Â
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(4)Â
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
This standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
B.Â
Accessibility requirements.
(2)Â
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)Â
An adaptable toilet and bathing facility on the first floor;
and
(b)Â
An adaptable kitchen on the first floor; and
(c)Â
An interior accessible route of travel on the first floor; and
(d)Â
An adaptable room that can be used as a bedroom, with a door,
or the casing for the installation of a door, on the first floor;
and
(e)Â
If not all of the foregoing requirements in Subsection B(2)(a) through (d) can be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the terms of Subsection B(2)(a) through (d) above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit; and
(f)Â
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7,[2] or evidence that Burlington has collected funds from the
developer sufficient to make 10% of the adaptable entrances in the
development accessible:
[1]Â
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]Â
To this end, the builder of restricted units shall deposit funds
within the City of Burlington's Affordable Housing Trust Fund sufficient
to install accessible entrances in 10% of the affordable units that
have been constructed with adaptable entrances.
[3]Â
The funds deposited under Subsection B(2)(f)[2] above shall be used by the City of Burlington 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]Â
The developer of the restricted units shall submit a design
plan and cost estimate to the Construction Official of the City of
Burlington for the conversion of adaptable to accessible entrances.
[5]Â
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible meet
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7,[3] and that the cost estimate of such conversion is reasonable,
payment shall be made to the City's Affordable Housing Trust Fund
in care of the City Treasurer who shall ensure that the funds are
deposited into the Affordable Housing Trust Fund and appropriately
earmarked.
[3]
Editor’s Note: See now N.J.A.C. 5:23-3.14(b).
[2]
Editor’s Note: See now N.J.A.C. 5:23-3.14(b).
(g)Â
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is site impracticable to meet
the requirements. Determinations of site impracticability shall be
in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.[4]
[4]
Editor’s Note: See now N.J.A.C. 5:23-3.14(b).
D.Â
Maximum rents and sales prices.
(1)Â
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 the calculation
procedures as approved by the Court.
(2)Â
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted rental units
shall be affordable to households earning no more than 52% of median
income.
(3)Â
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units, provided that at least 13% of all low-
and moderate-income rental units shall be affordable to very-low-income
households, which very-low-income units shall be part of the low-income
requirement.
(4)Â
The maximum sales price of restricted ownership units within each
affordable development shall be affordable to households earning no
more than 70% of median income, and each affordable development must
achieve an affordability average of 55% for restricted ownership units;
in achieving this affordability average, moderate-income ownership
units must be available for at least three different 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)Â
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)Â
A studio shall be affordable to a one-person household;
(b)Â
A one-bedroom unit shall be affordable to a 1Â 1/2 person
household;
(c)Â
A two-bedroom unit shall be affordable to a three-person household;
(d)Â
A three-bedroom until shall be affordable to a 4Â 1/2 person
household; and
(e)Â
A four-bedroom unit shall be affordable to a six-person household.
(6)Â
The initial purchase price for all restricted ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowner and private mortgage insurance and condominium or homeowners'
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.
(7)Â
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
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.
(8)Â
The price of owner-occupied low- and moderate-income units may increase
annually based on the percentage increase in the regional median income
limit for each housing region. In no event shall the maximum resale
price established by the Administrative Agent be lower than the last
recorded purchase price. 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 Northeast Urban
Area. This increase shall not exceed 9% in any one year. Rent increases
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.Â
Affordable units shall utilize the same type of heating source as
market units within an inclusionary development.
B.Â
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 HUD for the 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.Â
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 chapter for a period of at least 30 years, subject to the
requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
B.Â
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
C.Â
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the Administrative Agent shall determine
the restricted price for the unit and shall also determine the nonrestricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value without the restrictions in place.
D.Â
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the Administrative Agent a recapture
note obligating the purchaser (as well as the purchaser's heirs, successors
and assigns) to repay, upon the first nonexempt sale after the unit's
release from the restrictions set forth in this chapter, 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.
The affordability controls set forth in this chapter shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
E.Â
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all Code standards upon the first
transfer of title 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.Â
The initial purchase price for a restricted ownership unit shall
be approved by the Administrative Agent.
B.Â
The Administrative Agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
C.Â
The master deeds of inclusionary developments shall provide no distinction
between the condominium or homeowners' association fees and special
assessments paid by low- and moderate-income purchasers and those
paid by market purchasers.
D.Â
The owners of restricted ownership units may apply to the Administrative Agent to increase the maximum sales price for the unit on the basis of anticipated capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household or the addition of a bathroom. See § 70-13.
A.Â
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income and moderate-income ownership units shall be reserved for households
with a gross household income less than 80% of median income.
B.Â
Notwithstanding the foregoing, the Administrative Agent may, upon
approval by the City Council, and subject to the Court's approval,
permit a moderate-income purchaser to buy a low-income unit if and
only if the Administrative Agent can demonstrate that there is an
insufficient number of eligible low-income purchasers in the housing
region to permit prompt occupancy of the unit and all other reasonable
efforts to attract a low-income purchaser, including pricing and financing
incentives, have failed. Any such low-income unit that is sold to
a moderate-income household shall retain the required pricing and
pricing restrictions for a low-income unit.
C.Â
A certified household that purchases a restricted ownership unit
must occupy it as the certified household's principal residence and
shall not lease the unit; provided, however, that the Administrative
Agent may permit the owner of a restricted ownership unit, upon application
and a showing of hardship, to lease the restricted unit to another
certified household for a period not to exceed one year.
D.Â
The Administrative Agent shall certify a household as eligible for
a restricted ownership unit when the household is a low-income household
or a moderate-income household, as applicable to the unit, and the
estimated monthly housing cost for the particular unit (including
principal, interest, taxes, homeowner and private mortgage insurance
and condominium or homeowners' association fees, as applicable) does
not exceed 33% of the household's eligible monthly income.
E.Â
A certified household that purchases a restricted ownership unit must occupy it as a certified household's principal residence and shall not lease the unit; provided, however, that the Administrative Agent may permit the owner of a restricted ownership unit, upon application and a showing of a hardship, to lease the restricted unit to another certified household for a period not to exceed one year. Violations of this provision shall be subject to the applicable enforcement provisions of § 70-20 of this chapter.
A.Â
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the owner shall apply to the Administrative Agent
for a determination in writing that the proposed indebtedness complies
with the provisions of this section, and the Administrative Agent
shall issue such determination prior to the owner incurring such indebtedness.
B.Â
With the exception of first purchase money mortgages, neither an
owner nor a lender shall at any time cause or permit the total indebtedness
secured by a restricted ownership unit to exceed 95% of the maximum
allowable resale price of the unit, as such price is determined by
the Administrative Agent in accordance with N.J.A.C. 5:80-26.6(b).
A.Â
The owners of restricted ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of capital improvements 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.Â
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 Administrative
Agent at the time of the signing of the agreement to purchase. The
purchase of central air conditioning installed subsequent to the initial
sale of the unit and not included in the base price may be made a
condition of the unit resale, provided the price, which shall be subject
to ten-year, straight-line depreciation, has been approved by the
Administrative Agent. Unless otherwise approved by the Administrative
Agent, the purchase of any property other than central air conditioning
shall not be made a condition of the unit resale. The owner and the
purchaser must personally certify at the time of closing that no unapproved
transfer of funds for the purpose of selling and receiving property
has taken place at the time of or as a condition of resale.
A.Â
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 chapter for a period of at least 30 years, until Burlington
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.Â
Deeds of all real property that includes 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 Burlington. 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.Â
A restricted rental unit shall remain subject to the affordability
controls of this chapter despite the occurrence of any of the following
events:
A.Â
A written lease shall be required for all restricted rental units,
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the Administrative
Agent.
B.Â
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the Administrative Agent.
C.Â
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the Administrative Agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this chapter.
D.Â
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.Â
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(1)Â
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)Â
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)Â
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.Â
The Administrative Agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income household,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(1)Â
The household currently pays more than 35% (40% for households eligible
for age-restricted units) of its gross household income for rent,
and the proposed rent will reduce its housing costs;
(2)Â
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(3)Â
The household is currently in substandard or overcrowded living conditions;
(4)Â
The household documents the existence of assets with which the household
proposes to supplement the rent payments; or
(5)Â
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.Â
The City of Burlington shall appoint a specific municipal employee
to serve as a Municipal Housing Liaison responsible for overseeing
the City's affordable housing program, including overseeing the administration
of affordability controls on the affordable units and the affirmative
marketing of available affordable units in accordance with the City's
Affirmative Marketing Plan; fulfilling monitoring and reporting requirements;
and supervising Administrative Agents. Burlington shall adopt an ordinance
creating the position of Municipal Housing Liaison and a resolution
appointing the person to fulfill the position of Municipal Housing
Liaison. The Municipal Housing Liaison shall be appointed by the governing
body and may be a full- or part-time municipal employee. The Municipal
Housing Liaison shall be approved by the Court and shall be duly qualified
through a training program sponsored by Affordable Housing Professionals
of New Jersey before assuming the duties of Municipal Housing Liaison.
B.Â
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for Burlington,
including the following responsibilities which may not be contracted
out to the Administrative Agent:
(1)Â
Serving as Burlington's primary point of contact for all inquiries
from the state, affordable housing providers, Administrative Agents
and interested households;
(2)Â
Monitoring the status of all restricted units in Burlington's Fair
Share Plan;
(3)Â
Compiling, verifying, submitting and posting all monitoring reports
as required by the Court and by this chapter;
(4)Â
Coordinating meetings with affordable housing providers and Administrative
Agents, as needed; and
(5)Â
Attending continuing education opportunities on affordability controls,
compliance monitoring and affirmative marketing at least annually
and more often as needed.
C.Â
Subject to the approval of the Court, the City of Burlington shall
designate one or more Administrative Agent(s) to administer and to
affirmatively market the affordable units constructed in the City
in accordance with UHAC and this chapter. An operating manual for
each affordable housing program shall be provided by the Administrative
Agent(s) to be adopted by resolution of the governing body and subject
to approval of the Court. The operating manual(s) shall be available
for public inspection in the office of the City Clerk, in the office
of the Municipal Housing Liaison, and in the office(s) of the Administrative
Agent(s). The Municipal Housing Liaison shall supervise the work of
the Administrative Agent(s).
An Administrative Agent shall be an independent entity serving
under contract to and reporting to the municipality. 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 Administrative Agent 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,[1] which include:
A.Â
Affirmative marketing:
(1)Â
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Affirmative Marketing Plan of
the City of Burlington and the provisions of N.J.A.C. 5:80-26.15;
and
(2)Â
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.Â
Household certification:
(1)Â
Soliciting, scheduling, conducting and following up on interviews
with interested households;
(2)Â
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)Â
Providing written notification to each applicant as to the determination
of eligibility or noneligibility;
(4)Â
Requiring that all certified applicants for restricted units execute
a certificate substantially in the form, as applicable, of either
the ownership or rental certificates set forth in Appendices J and
K of N.J.A.C. 5:80-26.1 et seq.;
(5)Â
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)Â
Employing a random selection process as provided in the Affirmative
Marketing Plan of the City of Burlington when referring households
for certification to affordable units; and
(7)Â
Notifying the following entities of the availability of affordable
housing units in the City of Burlington: Fair Share Housing Center,
the New Jersey State Conference of the NAACP, the Latino Action Network,
East Orange NAACP, Newark NAACP, Morris County NAACP and Elizabeth
NAACP.
C.Â
Affordability controls:
(1)Â
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)Â
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)Â
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Burlington
County Register of Deeds or Burlington County Clerk's office after
the termination of the affordability controls for each restricted
unit;
(4)Â
Communicating with lenders regarding foreclosures; and
(5)Â
Ensuring the issuance of continuing certificates of occupancy or
certifications pursuant to N.J.A.C. 5:80-26.10.
D.Â
Resales and rerentals:
(1)Â
Instituting and maintaining an effective means of communicating information
between owners and the Administrative Agent regarding the availability
of restricted units for resale or rerental; and
(2)Â
Instituting and maintaining an effective means of communicating information
to low- (or very-low-) and moderate-income households regarding the
availability of restricted units for resale or rerental.
E.Â
Processing requests from unit owners:
(1)Â
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 chapter;
(2)Â
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)Â
Notifying the municipality of an owner's intent to sell a restricted
unit; and
(4)Â
Making determinations on requests by owners of restricted units for
hardship waivers.
F.Â
Enforcement:
(1)Â
Securing annually from the municipality a list of all affordable
housing units for which tax bills are mailed to absentee owners, and
notifying all such owners that they must either move back to their
unit or sell it;
(2)Â
Securing from all developers and sponsors of restricted units, at
the earliest point of contact in the processing of the project or
development, written acknowledgement of the requirement that no restricted
unit can be offered, or in any other way committed, to any person,
other than a household duly certified to the unit by the Administrative
Agent;
(3)Â
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 Administrative Agent where complaints of excess
rent or other charges can be made;
(4)Â
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)Â
Establishing a program for diverting unlawful rent payments to the
municipality's Affordable Housing Trust Fund; and
(6)Â
Creating and publishing a written operating manual for each affordable
housing program administered by the Administrative Agent, to be approved
by the City Council and the Court, setting forth procedures for administering
the affordability controls.
G.Â
Additional responsibilities:
(1)Â
The Administrative Agent shall have the authority to take all actions
necessary and appropriate to carry out its responsibilities hereunder.
(2)Â
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 chapter.
(3)Â
The Administrative Agent shall attend continuing education sessions
on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
[1]
Editor's Note: See N.J.A.C. 5:80-26.14, 5:80-26.16 and 5:80-26.18.
A.Â
The City of Burlington shall adopt by resolution an Affirmative Marketing
Plan, subject to approval of the Court, that is compliant with N.J.A.C.
5:80-26.15, as may be amended and supplemented.
B.Â
The Affirmative Marketing Plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to housing units which are being marketed
by a developer, sponsor or owner of affordable housing. The Affirmative
Marketing Plan is 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 5 and is required to be followed throughout the period
of restriction.
C.Â
The Affirmative Marketing Plan shall provide a regional preference
for all households that live and/or work in Housing Region 5, comprised
of Burlington, Camden and Gloucester Counties.
D.Â
The municipality has the ultimate responsibility for adopting the
Affirmative Marketing Plan and for the proper administration of the
Affirmative Marketing Program, including initial sales and rentals
and resales and rerentals. The Administrative Agent designated by
the City of Burlington shall implement the Affirmative Marketing Plan
to assure the affirmative marketing of all affordable units.
E.Â
In implementing the Affirmative Marketing Plan, the Administrative
Agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
F.Â
The Affirmative Marketing Plan shall describe the media to be used
in advertising and publicizing the availability of housing. In implementing
the Affirmative Marketing Plan, the Administrative Agent shall consider
the use of language translations where appropriate.
G.Â
The affirmative marketing process for available affordable units
shall begin at least four months (120 days) prior to the expected
date of occupancy.
H.Â
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;
the municipal administration building and the municipal library in
the municipality in which the units are located; and the developer's
rental office. Applications shall be mailed to prospective applicants
upon request.
I.Â
In addition to other affirmative marketing strategies, the Administrative
Agent shall provide specific notice of the availability of affordable
housing units in Burlington, and copies of the application forms,
to the following entities: Fair Share Housing Center, the New Jersey
State Conference of the NAACP, the Latino Action Network, Southern
Burlington County NAACP, the Supportive Housing Center, and the New
Jersey Housing Resource Center.
J.Â
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
A.Â
Upon the occurrence of a breach of any of the regulations governing
an affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, a requirement for household
recertification, acceleration of all sums due under a mortgage, recuperation
of any funds from a sale in violation of the regulations, injunctive
relief to prevent further violation of the regulations, entry on the
premises, and specific performance.
B.Â
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action(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)Â
The municipality may file a court action pursuant to N.J.S.A. 2A:58-I
1 alleging a violation or violations of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
adjudged by the Court to have violated any provision of the regulations
governing affordable housing units, the owner, developer or tenant
shall be subject to one or more of the following penalties, at the
discretion of the Court:
(a)Â
A fine of not more than $500 per day or imprisonment for a period
not to exceed 90 days, or both, provided that each and every day that
the violation continues or exists shall be considered a separate and
specific violation of these provisions and not a continuation of the
initial offense;
(b)Â
In the case of an owner who has rented a low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the City of Burlington Affordable Housing Trust
Fund of the gross amount of rent illegally collected;
(c)Â
In the case of an owner who has rented a low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation costs,
as determined by the Court.
(2)Â
The municipality may file a court action in the Superior Court seeking
a judgment that would result in the termination of the owner's equity
or other interest in the unit, in the nature of a mortgage foreclosure.
Any such judgment shall be enforceable as if the same were a judgment
of default of the first purchase money mortgage and shall constitute
a lien against the low- or moderate-income unit.
(a)Â
The judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the low-
and moderate-income unit of the violating owner shall be sold at a
sale price which is not less than the amount necessary to fully satisfy
and pay off any first purchase money mortgage and prior liens and
the costs of the enforcement proceedings incurred by the municipality,
including attorney's fees. The violating owner shall have his right
to possession terminated as well as his title conveyed pursuant to
the Sheriff's sale.
(b)Â
The proceeds of the Sheriff's sale shall first be applied to
satisfy the first purchase money mortgage lien and any prior liens
upon the low- and moderate-income unit. The excess, if any, shall
be applied to reimburse the municipality for any and all costs and
expenses incurred in connection with either the court action resulting
in the judgment of violation or the Sheriff's sale. In the event that
the proceeds from the Sheriff's sale are insufficient to reimburse
the municipality in full as aforesaid, the violating owner shall be
personally responsible for the full extent of such deficiency, in
addition to any and all costs incurred by the municipality in connection
with collecting such deficiency. In the event that a surplus remains
after satisfying all of the above, such surplus, if any, shall be
placed in escrow by the municipality for the owner and shall be held
in such escrow for a maximum period of two years or until such earlier
time as the owner shall make a claim with the municipality for such.
Failure of the owner to claim such balance within the two-year period
shall automatically result in a forfeiture of such balance to the
municipality. Any interest accrued or earned on such balance while
being held in escrow shall belong to and shall be paid to the municipality,
whether such balance shall be paid to the owner or forfeited to the
municipality.
(c)Â
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the Sheriff's sale, subject to the restrictions
and provisions of the regulations governing the affordable housing
unit. The owner determined to be in violation of the provisions of
this plan and from whom title and possession were taken by means of
the Sheriff's sale shall not be entitled to any right of redemption.
(d)Â
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the municipality may acquire title to the low- and moderate-income
unit by satisfying the first purchase money mortgage and any prior
liens and crediting the violating owner with an amount equal to the
difference between the first purchase money mortgage and any prior
liens and costs of the enforcement proceedings, including legal fees
and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
(e)Â
Failure of the low- and moderate-income unit to be either sold
at the Sheriff's sale or acquired by the municipality shall obligate
the owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
(f)Â
The owner shall remain fully obligated, responsible and liable
for complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
[Amended 12-7-2021 by Ord. No. 25-2021]
A.Â
Residential development fees.
(1)Â
Within the City of Burlington, all residential developers, except
for developers of the type of developments specifically exempted below,
shall pay a fee of 1.5% of the equalized assessed value, provided
no increased density is permitted.
(2)Â
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 that maybe realized.
(3)Â
Residential development fees shall be imposed and collected on the
construction of new residential development and on an addition or
alteration to an existing structure, if the addition or alteration
causes the existing structure to undergo a change that represents
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.
(4)Â
Eligible exactions, ineligible exactions and exemptions for residential
development.
(a)Â
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the municipality, and developments where the developer has made a
payment in lieu of on-site construction of affordable units, if permitted
by ordinance, shall be exempt from development fees.
(b)Â
In areas designated as "redevelopment areas," pursuant to N.J.S.A.
40A:12A-1 et seq., where the developer has entered into an agreement
with the City of Burlington and where the terms of that agreement
specify the developer's obligation to provide a contribution
to the City's affordable housing obligations.
(c)Â
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.
(d)Â
Owner-occupied residential structures demolished and replaced
as a result of a fire, flood, or natural disaster shall be exempt
from paying a development fee.
(e)Â
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.
B.Â
Nonresidential development fees.
(1)Â
Imposed fees.
(a)Â
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.
(b)Â
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.
(c)Â
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and 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 subsection results in a negative number, the nonresidential
development fee shall be zero.
(2)Â
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(a)Â
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the 2Â 1/2% development fee,
unless otherwise exempted below.
(b)Â
In areas designated as "redevelopment areas," pursuant to N.J.S.A.
40A:12A-1 et seq., where the developer has entered into an agreement
with the City of Burlington and where the terms of that agreement
specify the developer's obligation to provide a contribution
to the City's affordable housing obligations.
(c)Â
The 2Â 1/2% fee shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within existing
footprint, reconstruction, renovations and repairs.
(d)Â
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.
(e)Â
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.
(f)Â
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the City of Burlington as a lien against the
real property of the owner.
[Added 12-7-2021 by Ord.
No. 25-2021]
A.Â
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.Â
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.Â
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.Â
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.Â
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.Â
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.Â
Should the City of Burlington 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.Â
The developer shall pay 100% of the calculated development fee amount
prior to the municipal issuance of a final certificate of occupancy
for the subject property.
I.Â
Appeal of development fees.
(1)Â
A developer may challenge residential development fees imposed by
filing a challenge with the County Board of Taxation. Pending a review
and determination by the Board, collected fees shall be placed in
an interest-bearing escrow account by the City of Burlington. 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)Â
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, collected fees
shall be placed in an interest-bearing escrow account by the City
of Burlington. 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.
[Added 12-7-2021 by Ord.
No. 25-2021]
A.Â
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Chief Financial Officer for the purpose
of depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
B.Â
The following additional funds shall be deposited in the affordable
housing trust fund and shall at all times be identifiable by source
and amount:
(1)Â
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development accessible;
(2)Â
Rental income from municipally operated units;
(3)Â
Repayments from affordable housing program loans;
(4)Â
Recapture funds;
(5)Â
Proceeds from the sale of affordable units; and
(6)Â
Any other funds collected in connection with Burlington's affordable
housing program.
C.Â
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by the Court.
[Added 12-7-2021 by Ord.
No. 25-2021]
A.Â
The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the housing trust fund may be used
for any activity approved by the Court to address the City of Burlington'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,
conversion of existing nonresidential buildings to create new affordable
units, green building strategies designed to lower low- and moderate-income
households monthly housing costs 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.
B.Â
Funds shall not be expended to reimburse the City of Burlington for
past housing activities.
C.Â
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)Â
Affordability assistance programs may include down payment assistance,
security deposit assistance, low-interest loans, rental assistance,
assistance with homeowners' association or condominium fees and
special assessments, and assistance with emergency repairs.
(2)Â
Affordability assistance to households earning 30% or less of median
income may include buying down the cost of low- or moderate-income
units in the municipal fair share plan to make them affordable to
households earning 30% or less of median income.
D.Â
The City of Burlington 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. 5:96-18.
E.Â
No more than 20% of all revenues collected from development fees
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or 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 COAH's 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.
[Added 12-7-2021 by Ord.
No. 25-2021]
A.Â
The City of Burlington shall provide annual reporting of Affordable
Housing Trust Fund activity to the State of New Jersey, Department
of Community Affairs, Council on Affordable Housing or Local Government
Services or other entity designated by the State of New Jersey, with
a copy provided to Fair Share Housing Center and posted on the municipal
website, using forms developed for this purpose by the New Jersey
Department of Community Affairs, Council on Affordable Housing or
Local Government Services. The reporting shall include an accounting
of all Affordable Housing Trust Fund activity, including the sources
and amounts of funds collected and the amounts and purposes for which
any funds have been expended. Such reporting shall include an accounting
of development fees collected from residential and nonresidential
developers, payments in lieu of constructing affordable units on site
(if permitted by ordinance or by agreement with the City), funds from
the sale of units with extinguished controls, barrier free escrow
funds, rental income from City-owned affordable housing units, repayments
from affordable housing program loans, and any other funds collected
in connection with the City's affordable housing programs, as
well as an accounting of the expenditures of revenues and implementation
of the Spending Plan approved by the Court.
B.Â
The City of Burlington's ability to impose, collect, spend and
retain development fees is based on compliance with the requirements
of N.J.A.C. 5:97-8. A breach of these conditions or a failure to expend
funds within the applicable required time period as set forth in In
re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd
442 N.J. Super. 563) may result in the forfeiture of any or all funds
remaining within its Affordable Housing Trust Fund. Any funds so forfeited
shall be deposited into the "New Jersey Affordable Housing Trust Fund"
established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A.
52:27D-320).
C.Â
In the event of a breach pursuant to Subsection A of this section, or for other good cause demonstrating the unapproved use(s) of funds, the Court may authorize the State of New Jersey, Department of Community Affairs, Division of Local Government Services (LGS), to direct the manner in which the funds in the Affordable Housing Trust Fund shall be expended, provided that all such funds shall, to the extent practicable, be utilized for affordable housing programs within the City of Burlington, or, if not practicable, then within the county or the housing region.
D.Â
Any party may bring a motion before the Superior Court presenting
evidence of a breach, and the Court may, after considering the evidence
and providing the municipality a reasonable opportunity to respond
and/or to remedy the noncompliant condition(s), and upon a finding
of continuing and deliberate noncompliance, determine to authorize
LGS to direct the expenditure of funds in the Trust Fund. The Court
may also impose such other remedies as may be reasonable and appropriate
to the circumstances.
[Added 12-7-2021 by Ord.
No. 25-2021]
A.Â
The ability of the City of Burlington to impose, collect and expend
development fees shall expire with the end of the repose period covered
by its judgment of compliance unless the City of Burlington has filed
an adopted Housing Element and Fair Share Plan with the Court, or
with a designated administrative entity of the State of New Jersey,
has petitioned for a judgment of compliance or substantive certification,
and has received approval of its development fee ordinance by the
entity that will be reviewing the Housing Element and Fair Share Plan.
B.Â
The City of Burlington shall not impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its judgment of compliance, nor shall
the City of Burlington retroactively impose a development fee on such
a development. The City of Burlington shall not expend development
fees after the expiration of its judgment of compliance.
[Added 12-7-2021 by Ord.
No. 25-2021]
Appeals from all decisions of an administrative agent appointed
pursuant to this chapter shall be filed in writing with the Court.
