[HISTORY: Adopted by the City Council of the City of Hackensack
as indicated in article histories. Amendments noted where applicable.]
[Adopted 12-22-2020 by Ord. No. 51-2020[1]]
[1]
Editor's Note: This ordinance also repealed former Art. I,
General Regulations, adopted 5-17-2011 by Ord. No. 10-2011.
A.
This chapter is intended to ensure 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 City's Housing Element and Fair Share Plan ("Fair Share Plan"),
adopted pursuant to the Municipal Land Use Law at N.J.S.A. 40:55D-1
et seq., describes how the City shall address its fair share of very-low-,
low-, and moderate-income housing.
C.
The City shall track the status of the implementation of its Fair
Share Plan in accordance with court orders and the monitoring requirements
set forth in this article.
The City shall comply with the following monitoring and reporting
requirements regarding the status of the implementation of its Court-approved
Fair Share Plan as follows:
A.
Beginning on April 22, 2023, and on every anniversary of that date
through July 2, 2025, the City will provide annual reporting of its
Affordable Housing Trust Fund activity to the New Jersey Department
of Community Affairs (NJDCA), Council on Affordable Housing (COAH),
or Local Government Services (NJLGS), 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 NJDCA, COAH, or 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.
[Amended 6-15-2021 by Ord. No. 27-2021; 5-24-2022 by Ord. No. 25-2022]
B.
Beginning on April 22, 2023, and on every anniversary of that date
though July 2, 2025, the City will provide annual reporting of the
status of all affordable housing activity within the City 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.
[Amended 6-15-2021 by Ord. No. 27-2021; 5-24-2022 by Ord. No. 25-2022]
C.
By September 10, 2021, 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 City and FSHC on the issue of whether the City has
complied with its very-low-income and family very-low-income housing
obligations.
As used in this chapter, the following terms shall have the
meanings indicated:
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity designated by the City to administer affordable
units in accordance with this article, N.J.A.C. 5:93, 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,
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.). Pursuant
to the opinion and order of the New Jersey Supreme Court dated March
10, 2015, in the matter of In re Adoption of N.J.A.C. 5:96 and 5:97
by N.J. Council on Affordable Housing, (M-392-14) 067126, any reference
to COAH or the Council shall be understood to refer to the Superior
Court of New Jersey, Law Division, Bergen County.
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.
A municipal employee annually appointed by resolution of
the governing body, responsible for the tracking and reporting of
affordable housing units to the appropriate authorities and parties
in addition to other affordable housing duties that may be assigned
by the City Manager.
[Added 6-15-2021 by Ord.
No. 27-2021]
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).
Any project where the extent and nature of the work is such
that the work areas cannot be occupied while work is in progress and
where a new certificate of occupancy is required before the work areas
can be reoccupied, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6. Reconstruction shall not include projects comprised of only
floor finish replacement, painting or wallpapering, or the replacement
of equipment or furnishings. Asbestos hazard abatement and lead hazard
abatement projects shall not be classified as reconstruction solely
because occupancy during the work performed is not permitted.
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 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.
The City and Fair Share Housing Center have agreed that the
City's Round 3 (1999-2025) indigenous need rehabilitation obligation
is 582 units. The City will continue to participate in the Bergen
County Home Improvement Program and/or other rehabilitation programs
to address its remaining rehabilitation obligation. Any such rehabilitation
programs will update and renovate deficient housing units occupied
by low- and moderate-income households such that, after rehabilitation,
these units will comply with the New Jersey State Housing Code pursuant
to N.J.A.C. 5:28.
A.
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.
B.
The City shall dedicate funds through its spending plan toward a
rehabilitation program.
[Amended 5-24-2022 by Ord. No. 25-2022]
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 re-rented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a low- or moderate-income household at an affordable rent
and affirmatively marketed pursuant to N.J.A.C. 5:93-9 and UHAC.
(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.
The administration of an alternative living arrangement shall be
in compliance with N.J.A.C. 5:93-5.8 and UHAC, with the following
exceptions:
B.
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.
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
|
|---|---|
|
25%
|
0%
|
|
25%+1
|
10%
|
|
50%
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
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.
In each development that includes affordable housing, at least 13%
of all restricted units shall be very-low-income units (affordable
to a household earning 30% or less of regional median income by household
size) across bedroom distribution. The very-low-income units shall
be counted as part of the required number of low-income units within
the development.
(2)
In each development that includes affordable housing, at least 50%
of the restricted units within each bedroom distribution shall be
very-low- or low-income units.
(3)
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.
(4)
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 Subcode, N.J.A.C.
5:23-7 and the following:
(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 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)
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier-Free Subcode, N.J.A.C.
5:23-7, or evidence that the City has collected funds from the developer
sufficient to make 10% of the adaptable entrances in the development
accessible:
[1]
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]
To this end, the builder of restricted units shall deposit funds
within the City'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)[2] above shall be used by the City 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 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 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.
(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.
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 the calculation
procedures as approved by the Court.
(a)
Regional income limits shall be established for the region that
the City is located within based on the median income by household
size, which shall be established by a regional weighted average of
the uncapped Section 8 income limits published by HUD. To compute
this regional income limit, the HUD determination of median county
income for a family of four is multiplied by the estimated households
within the county according to the most recent decennial Census. The
resulting product for each county within the housing region is summed.
The sum is divided by the estimated total households from the most
recent decennial Census in the City's housing region. This quotient
represents the regional weighted average of median income for a household
of four. The income limit for a moderate-income unit for a household
of four shall be 80% of the regional weighted average median income
for a family of four. The income limit for a low-income unit for a
household of four shall be 50% of the HUD determination of the regional
weighted average median income for a family of four. The income limit
for a very-low-income unit for a household of four shall be 30% of
the regional weighted average median income for a family of four.
These income limits shall be adjusted by household size based on multipliers
used by HUD to adjust median income by household size. In no event
shall the income limits be less than those for the previous year.
(b)
The income limits are the result of applying the percentages set forth in Subsection D(1)(a) above to HUD's determination of median income for the fiscal year 2017, and shall be utilized until the City updates the income limits after HUD has published revised determinations of median income for the next fiscal year.
(c)
The Regional Asset Limit used in determining an applicant's eligibility for affordable housing pursuant to N.J.A.C. 5:80-26.16(b)(3) shall be calculated by the City annually by taking the percentage increase of the income limits calculated pursuant to Subsection D(1)(a) above over the previous year's income limits, and applying the same percentage increase to the Regional Asset Limit from the prior year. In no event shall the Regional Asset Limit be less than that for the previous year.
(d)
In establishing sale prices and rents of affordable housing
units, the City's administrative agent shall follow the procedures
set forth in UHAC, utilizing the regional income limits established
pursuant to the process defined above:
[1]
The resale prices 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 determined pursuant
to the above methodology. In no event shall the maximum resale price
established by the administrative agent be lower than the last recorded
purchase price.
[2]
The rent levels of very-low-, low- and moderate-income units
may be increased annually based on the percentage increase in the
Housing Consumer Price Index for the Northeast Urban Area, upon its
publication for the prior calendar year. This increase shall not exceed
9% in any one year. Rents for units constructed pursuant to low-income
housing tax credit regulations shall be indexed pursuant to the regulations
governing low-income housing tax credits.
(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, 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)
The price of owner-occupied low- and moderate-income units may increase
annually based on the percentage increase in the regional median income
limit for each housing region. In no event shall the maximum resale
price established by the administrative agent be lower than the last
recorded purchase price.
(10)
The 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.
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 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.
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this article for a period of at least 30 years, until the City
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 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.
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 article, 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 article shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
F.
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all Code standards upon the first
transfer of title following the removal of the restrictions provided
under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
A.
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:
B.
The initial purchase price for a restricted ownership unit shall
be approved by the administrative agent.
C.
The administrative agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
D.
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.
E.
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 as per § 45A-14.
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.
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.
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. Violations of this provision shall be subject to the applicable enforcement provisions of § 45A-21.
[Amended 6-15-2021 by Ord. No. 27-2021]
D.
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.[1]
[1]
Editor's Note: Former Subsections E, which allowed a moderate-income
purchaser to buy a low-income unit under certain circumstances, and
F, which required the owner to be the occupant of the ownership unit,
both of which immediately followed this subsection, were repealed 6-15-2021 by Ord. No. 27-2021.
A.
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.
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.
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.
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.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this article for a period of at least 30 years, until the City
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 administrative agent within 30 days of the receipt of a certificate
of occupancy.
C.
A restricted rental unit shall remain subject to the affordability
controls of this article despite the occurrence of any of the following
events:
A.
A written lease shall be required for all restricted rental units
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the administrative
agent.
B.
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the administrative agent.
C.
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the administrative agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this article.
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 article.
A.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(1)
Very-low-income rental units shall be reserved for households with
a gross household income less than or equal to 30% of 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 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)
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 City 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 agent(s). The City Council shall adopt a
resolution appointing the person to fulfill the position of Municipal
Housing Liaison. The Municipal Housing Liaison shall be appointed
by the City Council and may be a full or part-time City 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.
[Amended 5-24-2022 by Ord. No. 25-2022]
B.
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the City,
including the following responsibilities which may not be contracted
out to the administrative agent:
(1)
Serving as Hackensack's primary point of contact for all inquiries
from the state, affordable housing providers, administrative agents
and interested households;
(2)
Monitoring the status of all restricted units in Hackensack's Fair
Share Plan;
(3)
Compiling, verifying, submitting and posting all monitoring reports
as required by the Court and by this article;
(4)
Coordinating meetings with affordable housing providers and administrative
agents, as needed; and
(5)
Attending continuing education opportunities on affordability controls,
compliance monitoring and affirmative marketing at least annually
and more often as needed.
C.
Subject to the approval of the Court, the City 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 article. An operating manual for each affordable
housing program shall be provided by the administrative agent(s) to
be adopted by resolution of the City Council 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 City. 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, 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 City of Hackensack 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 Appendices 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 City when referring households for certification
to affordable units; and
(7)
Notifying the following entities of the availability of affordable
housing units in the City: the Fair Share Housing Center, the New
Jersey State Conference of the NAACP, the Latino Action Network, the
Bergen County Branch of the NAACP, the Bergen County United Way, 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 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 administrative agent regarding the availability
of restricted units for resale or rerental; and
(2)
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.
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 article;
(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 City 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 City 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 administrative
agent;
(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 administrative agent 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
City's Affordable Housing Trust Fund; and
(6)
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.
Additional responsibilities.
(1)
The administrative agent shall have the authority to take all actions
necessary and appropriate to carry out his or her 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 article.
(3)
The administrative agent shall attend continuing education sessions
on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
A.
The City of Hackensack shall adopt by resolution an Affirmative Marketing
Plan, subject to approval of the Court, which is compliant with N.J.A.C.
5:80-26.15, and as it 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 City 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 shall
implement the Affirmative Marketing Plan to assure the affirmative
marketing of all affordable units.
E.
In implementing the Affirmative Marketing Plan, the administrative
agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
F.
The Affirmative Marketing 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.
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;
Hackensack City Hall and the Johnson Public Library; and the developer's
rental office. Applications shall be mailed to prospective applicants
upon request.
I.
In addition to other affirmative marketing strategies, the administrative
agent shall provide specific notice of the availability of affordable
housing units in Hackensack, and copies of the application forms,
to the following entities: the Fair Share Housing Center, the New
Jersey State Conference of the NAACP, the Latino Action Network, the
Bergen County Branch of the NAACP, the Bergen County United Way, and
the Supportive Housing Association.
J.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
K.
The administrative agent designated by the City shall assure the
affirmative marketing of all affordable units consistent with the
affirmative marketing plan for the City and applicable law, including
posting of all affordable units on the online New Jersey Housing Resource
Center website.
A.
Upon the occurrence of a breach of any of the regulations governing
an affordable unit by an owner, developer or tenant, the City 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.
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 City
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 City 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
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 $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)
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 Hackensack Affordable Housing Trust
Fund of the gross amount of rent illegally collected;
(c)
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)
The City 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 City,
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 City, including
attorney's fees. The violating owner shall have his, her or its right
to possession terminated as well as his, her or its 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 City 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
City 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 City 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 City 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 City 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 City. Any interest accrued
or earned on such balance while being held in escrow shall belong
to and shall be paid to the City, whether such balance shall be paid
to the owner or forfeited to the City.
(c)
Foreclosure by the City 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)
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 City 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 that would have been realized from an actual
sale as previously described.
(e)
Failure of the low- and moderate-income unit to be either sold
at the Sheriff's sale or acquired by the City shall obligate the owner
to accept an offer to purchase from any qualified purchaser that may
be referred to the owner by the City, 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)
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 article shall be filed in writing with the Court.
[Adopted 5-17-2011 by Ord. No. 11-2011; amended in its entirety 12-22-2020 by Ord. No.
52-2020]
A.
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550
(1990), the New Jersey Supreme Court determined that mandatory development
fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A.
52:27D-301 et seq., and the state constitution, subject to the Council
on Affordable Housing's (COAH's) adoption of rules.
B.
Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and
the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1
through 40:55D-8.7), COAH is authorized to adopt and promulgate regulations
necessary for the establishment, implementation, review, monitoring
and enforcement of municipal affordable housing trust funds and corresponding
spending plans. Municipalities that are under the jurisdiction of
the Council or court of competent jurisdiction and have a COAH-approved
spending plan may retain fees collected from nonresidential development.
C.
In re: Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council
on Affordable Housing, 221 N.J. 1 (2015), also known as the Mount
Laurel IV decision, the Supreme Court remanded COAH's duties to the
Superior Court. As a result, affordable housing development fee collections
and expenditures from the municipal affordable housing trust funds
to implement municipal Third Round Fair Share Plans through July 1,
2025, are under the Court's jurisdiction and are subject to approval
by the Court.
D.
This article establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance P.L. 2008, c. 46, Sections 8 and 32 through 38.
Fees collected pursuant to this article shall be used for the sole
purpose of providing low- and moderate-income housing. This article
shall be interpreted within the framework of COAH's rules on development
fees, codified at N.J.A.C. 5.93-8.
A.
This article shall not be effective until the Superior Court approves
the City's Development Fee Ordinance in accordance with N.J.A.C. 5:93-8.
B.
The City of Hackensack shall not spend development fees until the
Superior Court has approved a plan for spending such fees in conformance
with N.J.A.C. 5:93-8.
As used in this article, the following terms shall have the
meanings indicated:
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100% affordable development.
The New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
consideration in the state. Pursuant to the opinion and order of the
New Jersey Supreme Court dated March 10, 2015, in the matter of In
re: Adoption of N.J.A.C. 5:96 and 5:97 by N.J. Council on Affordable
Housing, (M-392-14) 067126, any reference to COAH or the Council shall
be understood to refer to the Superior Court of New Jersey, Law Division,
Bergen County.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L.1973, c.123 (N.J.S.A. 54:1-35a through 54:1-35c).
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
A.
Imposed fees.
(1)
Within all zoning district(s), residential developers, except for
developers of the types of development specifically exempted below,
shall pay a fee of 1.5% of the equalized assessed value for residential
development, provided no increased density is permitted.
(2)
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5)
(known as a "d" variance) has been permitted, developers shall be
required to pay a development fee of 6% of the equalized assessed
value for each additional unit that may be realized. However, if the
zoning on a site has changed during the two-year period preceding
the filing of such a variance application, the base density for the
purposes of calculating the bonus development fee shall be the highest
density permitted by right during the two-year period preceding the
filing of the variance application. Example: If an approval allows
four units to be constructed on a site that was zoned for two units,
the fees would equal 1.5% of the equalized assessed value on the first
two units; and the specified higher percentage of 6% of the equalized
assessed value for the two additional units, provided zoning on the
site has not changed during the two-year period preceding the filing
of such a variance application.
[Amended 2-22-2022 by Ord. No. 08-2022]
B.
Eligible exactions, ineligible exactions and exemptions for residential
development.
(1)
Affordable housing developments and 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 shall
be exempt from development fees.
[Amended 2-22-2022 by Ord. No. 08-2022]
(2)
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.
(3)
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.
(4)
Developers of residential development with one or two owner-occupied
dwelling units, residential structures, demolished and replaced as
a result of a natural disaster shall be exempt from paying a development
fee.
[Amended 2-22-2022 by Ord. No. 08-2022]
A.
Imposed fees.
(1)
Within all zoning districts, nonresidential developers, except for
developers of the types of development specifically exempted, shall
pay a fee equal to 2.5% of the equalized assessed value of the land
and improvements, for all new nonresidential construction on an unimproved
lot or lots.
(2)
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to 2.5%
of the increase in equalized assessed value resulting from any additions
to existing structures to be used for nonresidential purposes.
(3)
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and improvement and the equalized assessed
value of the newly improved structure, i.e., land and improvement,
at the time final certificate of occupancy is issued. If the calculation
required under this section results in a negative number, the nonresidential
development fee shall be zero.
B.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
(1)
The nonresidential portion of a mixed-use inclusionary or market-rate
development shall be subject to the development fee of 2.5%, unless
otherwise exempted below. Redevelopment projects and other nonresidential
projects where the developer has made a payment in lieu to the trust
fund shall be exempt from development fees otherwise required, as
approved by the City of Hackensack.
(2)
The fee of 2.5% shall not apply to an increase in equalized assessed
value resulting from alterations, change in use within existing footprint,
reconstruction, renovations and repairs.
(3)
Nonresidential developments shall be exempt from the payment of nonresidential
development fees in accordance with the exemptions required pursuant
to P.L. 2008, c. 46, as specified in the Form N-RDF, State of New
Jersey Nonresidential Development Certification/Exemption form. Any
exemption claimed by a developer shall be substantiated by that developer.
(4)
A developer of a nonresidential development exempted from the nonresidential
development fee pursuant to P.L. 2008, c. 46, shall be subject to
it at such time the basis for the exemption no longer applies, and
shall make the payment of the nonresidential development fee, in that
event, within three years after that event or after the issuance of
the final certificate of occupancy of the nonresidential development,
whichever is later.
(5)
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the City of Hackensack as a lien against the
real property of the owner.
A.
Upon the granting of a preliminary, final or other applicable approval
for a development, the applicable approving authority shall direct
its staff to notify the construction official responsible for the
issuance of a building permit.
B.
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, State of New Jersey Nonresidential
Development Certification/Exemption, to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in Form N-RDF. The Tax Assessor shall
verify exemptions and prepare estimated and final assessments as per
the instructions provided in Form N-RDF.
C.
The construction official responsible for the issuance of a building
permit shall notify the local Tax Assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
D.
Within 90 days of receipt of that notice, the municipal Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
E.
The construction official responsible for the issuance of a final
certificate of occupancy shall notify the local Assessor of any and
all requests for the scheduling of a final inspection on property
which is subject to a development fee.
F.
Within 10 business days of a request for the scheduling of a final
inspection, the municipal Assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development,
calculate the development fee, and thereafter notify the developer
of the amount of the fee.
G.
Should the City of Hackensack 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.
Fifty percent of the development fee shall be collected at the time
of issuance of the building permit. The remaining portion shall be
collected at the issuance of the certificate of occupancy. The developer
shall be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of certificate
of occupancy.
I.
Appeal of development fees.
(1)
A developer may challenge residential development fees imposed by
filing a challenge with the County Board of Taxation. Pending a review
and determination by the Board, collected fees shall be placed in
an interest-bearing escrow account by the City of Hackensack. Appeals
from a determination of the Board may be made to the Tax Court in
accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
(2)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by the City of Hackensack.
Appeals from a determination of the Director may be made to the Tax
Court in accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
A.
There has previously been created a separate, interest-bearing housing
trust fund, which will continue to be maintained by the Chief Financial
Officer or Treasurer of the City of Hackensack for the purpose of
depositing development fees and payments-in-lieu collected from residential
and nonresidential developers and proceeds from the sale of units
with extinguished controls.
[Amended 2-22-2022 by Ord. No. 08-2022]
B.
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(1)
Payments in lieu of on-site construction of affordable units;
(2)
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development accessible;
(3)
Rental income from municipally operated units except as otherwise
administered by the Hackensack Housing Authority;
(4)
Repayments from affordable housing program loans;
(5)
Recapture funds;
(6)
Proceeds from the sale of affordable units; and
(7)
Any other funds collected in connection with the City of Hackensack's
affordable housing program except as otherwise administered by the
Hackensack Housing Authority.
C.
In the event of a failure by the City of Hackensack to comply with
trust fund monitoring and reporting requirements or to submit accurate
monitoring reports; or a failure to comply with the conditions of
the judgment of compliance or a revocation of the judgment of compliance;
or a failure to implement the approved Spending Plan and to expend
funds within the applicable required time period as set forth in In
re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J.
Super. 563); or the expenditure of funds on activities not approved
by the Court; or for other good cause demonstrating the unapproved
use(s) of funds, the Court may authorize the State of New Jersey,
Department of Community Affairs, Division of Local Government Services
(LGS), to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the City of Hackensack, or, if not practicable, then within
the county or the Housing Region.
D.
Any party may bring a motion before the Superior Court presenting
evidence of such condition(s), and the Court may, after considering
the evidence and providing the municipality a reasonable opportunity
to respond and/or to remedy the noncompliant condition(s), and upon
a finding of continuing and deliberate noncompliance, determine to
authorize LGS to direct the expenditure of funds in the Trust Fund.
The Court may also impose such other remedies as may be reasonable
and appropriate to the circumstances.
E.
All interest accrued in the Housing Trust Fund shall only be used
on eligible affordable housing activities approved by the Court.
A.
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 Hackensack's
fair share obligation and may be set up as a grant or revolving loan
program. Such activities include, but are not limited to:
(1)
Preservation or purchase of housing for the purpose of maintaining
or implementing affordability controls;
(2)
Rehabilitation, new construction of affordable housing units and
related costs;
(3)
Accessory apartment;
(4)
Market to affordable;
(5)
Conversion of existing nonresidential buildings to create new affordable
units;
(6)
Green building strategies designed to be cost saving and in accordance
with accepted national or state standards;
(7)
Purchase of land for affordable housing;
(8)
Improvement of land to be used for affordable housing;
(9)
Extensions or improvements of roads and infrastructure to affordable
housing sites;
(10)
Financial assistance designed to increase affordability;
(11)
Administration necessary for implementation of the Housing Element
and Fair Share Plan; or
(12)
Any other activity as permitted pursuant to N.J.A.C. 5:93-8
and specified in the approved spending plan.
B.
Funds shall not be expended to reimburse the City of Hackensack for
past housing activities.
C.
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the municipal Fair Share
Plan. One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
(1)
Affordability assistance programs may include down payment assistance,
security deposit assistance, low-interest loans, rental assistance,
assistance with homeowners' association or condominium fees and special
assessments, and assistance with emergency repairs.
(2)
Affordability assistance to households earning 30% or less of median
income may include buying down the cost of low- or moderate-income
units in the municipal fair share plan to make them affordable to
households earning 30% or less of median income.
(3)
Payments in lieu of constructing affordable units on site and funds
from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
D.
The City of Hackensack may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including the requirement for affordability assistance, in accordance
with N.J.A.C. 5:94-7.
E.
No more than 20% of 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.
On an annual basis commencing with the first anniversary of
the entry of the order granting a final judgment of compliance and
repose, the City of Hackensack shall provide annual reporting of trust
fund activity to the New Jersey Department of Community Affairs ("DCA"),
COAH, or Local Government Services ("LGS"), 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 DCA, COAH, or LGS. This reporting shall include
an accounting of all Housing Trust Fund activity, including the collection
of development fees from residential and nonresidential developers,
payments in lieu of constructing affordable units on site, funds from
the sale of units with extinguished controls, barrier-free escrow
funds, rental income, repayments from affordable housing program loans,
and any other funds collected in connection with the City's housing
program, as well as to the expenditure of revenues and implementation
of the plan approved by the Court.
A.
The ability for the City of Hackensack to impose, collect and expend
development fees shall expire with its substantive certification or
judgment of compliance and repose unless the City of Hackensack has
filed an adopted Housing Element and Fair Share Plan with the court
or other appropriate jurisdiction, has filed a declaratory judgment
action and has received court approval of its Development Fee Ordinance.
[Amended 2-22-2022 by Ord. No. 08-2022]
B.
If the City of Hackensack fails to renew its ability to impose and
collect development fees prior to the expiration of substantive certification
or judgment of compliance and repose, it may be subject to forfeiture
of any or all funds remaining within its municipal trust fund. Any
funds so forfeited shall be deposited into the New Jersey Affordable
Housing Trust Fund established pursuant to Section 20 of P.L. 1985,
c. 222 (N.J.S.A. 52:27D-320).
C.
The City of Hackensack shall not impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its substantive certification or
judgment of compliance, nor shall the City of Hackensack retroactively
impose a development fee on such a development. The City of Hackensack
shall not expend development fees after the expiration of its substantive
certification or judgment of compliance and repose.
