A.
This article is intended to assure that affordable housing units
are created with controls on affordability over time and that low-
and moderate-income households shall occupy these units. This article
shall apply except where inconsistent with applicable law.
B.
The Hawthorne Planning Board has adopted a Housing Element and Fair
Share Plan pursuant to the Municipal Land Use Law at N.J.S.A. 40:55D-1
et seq. The Housing Element and Fair Share Plan has been endorsed
by the governing body. The Fair Share Plan describes the ways the
Borough of Hawthorne shall address its fair share for affordable housing
as directed by the Superior Court and documented in the Housing Element.
C.
This chapter implements and incorporates the adopted and endorsed
Housing Element and Fair Share Plan and addresses the requirements
of N.J.A.C. 5:93-1 et seq., as amended and supplemented, N.J.A.C.5:80-
26.1 et seq. ,as amended and supplemented, and the New Jersey Fair
Housing Act of 1985, as amended.[1]
[1]
Editor's Note: See N.J.S.A. 52:27D-301 et seq.
As used in this article, the following terms shall have the
meanings indicated:
A self-contained residential dwelling unit with a kitchen,
sanitary facilities, sleeping quarters and a private entrance, which
is created within an existing home, or through the conversion of an
existing accessory structure on the same site, or by an addition to
an existing home or accessory building, or by the construction of
a new accessory structure on the same site.
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.), as amended.
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity responsible for administering the affordability
controls with respect to specific restricted units in accordance with
this chapter, the regulations of the Council on Affordable Housing
set forth at N.J.A.C. 5:93 et seq., and the Uniform Housing Affordability
Controls set forth at N.J.A.C. 5:80-26 et seq.
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80- 26.15.
The average percentage of median income at which restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent within the means of a low- or moderate-income
household as defined in N.J.A.C. 5:93-7.4; in the case of an ownership
unit, that the sales price for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.6, as may be amended and supplemented,
and, in the case of a rental unit, that the rent for the unit conforms
to the standards set forth in N.J.A.C. 5:80-26.12, as may be amended
and supplemented.
A housing development all or a portion of which consists
of restricted units.
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,
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 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.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population,
such that:
All the residents of the development where the unit is situated
are 62 years or older;
At least 80% of the units are occupied by one person that is
55 years or older; or
The development has been designated by the Secretary of the
U.S. Department of Housing and Urban Development as "housing for older
persons" as defined in Section 807(b)(2) of the Fair Housing Act,
42 U.S.C. § 3607.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include, but are not limited
to transitional facilities for the homeless; Class A, B, C, D and
E boarding homes as regulated by the State of New Jersey Department
of Community Affairs; residential health care facilities as regulated
by the New Jersey Department of Health; group homes for the developmentally
disabled and mentally ill as licensed and/or regulated by the New
Jersey Department of Human Services; and congregate living arrangements.
A facility licensed by the New Jersey Department of Health
and Senior Services to provide apartment-style housing and congregate
dining and to assure that assisted-living services are available when
needed for four or more adult persons unrelated to the proprietor
and that offers units containing, at a minimum, one unfurnished room,
a private bathroom, a kitchenette and a lockable door on the unit
entrance.
A household that has been certified by an administrative
agent as a 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
require the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development, including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
A development containing both affordable units and market-rate
units. This term includes, but is not necessarily limited to, new
construction, the conversion of a nonresidential structure to residential
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 median household income.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building which
include but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement or load-bearing structural systems.
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable 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 median household income.
A restricted unit that is affordable to a moderate-income
household.
The employee charged by the governing body with the responsibility
for oversight and administration of the affordable housing program
for the Borough of Hawthorne.
Any sale or transfer of ownership other than the transfer
of ownership between spouses; 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 ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80- 26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under the New Jersey Housing and Mortgage Finance Agency's
Urban Homeownership Recovery Program (UHORP) or the Agency's
Market-Oriented Neighborhood Investment Program (MONI).
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the median household income for the applicable housing
region.
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.
A.
The provisions of this chapter shall apply to all developments that
contain low- and/or moderate-income housing units, including any affordable
housing developments that currently exist, any affordable housing
developments that are proposed to be created within the Borough of
Hawthorne pursuant to the Borough's most recently adopted Housing
Element and Fair Share Plan, as well as any currently unanticipated
future developments that will provide low- and/or moderate-income
housing units.
B.
All affordable housing developments, including those intended to
be funded through federal Low Income Housing Tax Credit programs,
shall be deed restricted to comply with COAH and UHAC rules pertaining
to the income and bedroom distributions of the units.
A.
The Borough will work with Passaic County and hire a separate entity
to rehabilitate units in the Borough to address the Borough's
rehabilitation obligation. Any such rehabilitation programs shall
be designed to 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.
B.
All rehabilitated rental and owner-occupied units shall remain affordable
to low- and moderate-income households for a period of 10 years (the
control period). For owner-occupied units, the control period will
be enforced with a lien and, for renter occupied units, the control
period will be enforced with a deed restriction.
C.
The Borough of Hawthorne shall dedicate $20,000 for each unit to
be rehabilitated through this program.
D.
The Borough shall adopt a resolution committing to fund any shortfall
in the Borough's Rehabilitation Program.
E.
The Borough of Hawthorne shall designate, subject to the approval
of the court, COAH, or any successor entity, one or more administrative
agents to administer the rehabilitation program in accordance with
N.J.A.C. 5:93. The administrative agent(s) shall provide a rehabilitation
manual for the owner occupancy rehabilitation program and a rehabilitation
manual for the rental occupancy rehabilitation program to be adopted
by resolution of the governing body and subject to approval of the
court, COAH, or any successor entity. Both rehabilitation manuals
shall be available for public inspection in the Office of the Municipal
Clerk and in the office(s) of the administrative agent(s).
F.
Units in a rehabilitation program shall be exempt from Uniform Housing
Affordability Controls (UHAC), 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 UHAC regulations.
(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 UHAC regulations.
(3)
Rents in rehabilitated units may increase annually based on
the standards in UHAC.
(4)
Applicant and/or tenant households shall be certified as income-eligible
in accordance with UHAC, except that households in owner-occupied
units shall be exempt from the regional asset limit.
A.
Maximum densities and minimum set-asides. The maximum permitted densities and minimum required affordable housing set-asides for inclusionary development shall be as set forth for each individual inclusionary zone district in Chapter 540, Zoning, of the Borough Code.
B.
Phasing. In inclusionary developments, the following schedule shall
be followed:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percentage of Affordable Units Completed
|
|---|---|
|
25%
|
0%
|
|
25%+1
|
10%
|
|
50%
|
50%
|
|
51%
|
50%
|
|
75%
|
75%
|
|
76%
|
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. At least 13% of all restricted rental units within each bedroom
distribution shall be very-low-income units (affordable to a household
earning 30% or less of regional median income by household size).
The very-low-income units shall be counted as part of the required
number of low-income units within a development. At least 50% of the
very low-income units must be available to families.
(2)
At least 25% of the obligation shall be met through rental units,
including at least half in rental units available to families.
(3)
A maximum of 25% of the Township's obligation may be met
with age-restricted units. At least half of all affordable units in
the Township's plan shall be available to families.
(4)
In each affordable development, at least 50% of the restricted
units within each bedroom distribution shall be low-income units.
(5)
Affordable developments that are not age-restricted shall be
structured in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total affordable units.
(b)
At least 30% of all affordable units shall be two-bedroom units.
(c)
At least 20% of all affordable units shall be three-bedroom
units; and
(d)
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer and the Borough.
(6)
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
affordable units within the inclusionary development. The standard
may be met by having all one-bedroom units or by having a two-bedroom
unit for each efficiency unit.
B.
Accessibility requirements.
(1)
The first floor of all restricted townhouse dwelling units and
all restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7.
(2)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
(a)
An adaptable toilet and bathing facility on the first floor;
(b)
An adaptable kitchen on the first floor;
(c)
An interior accessible route of travel on the first floor;
(d)
An interior accessible route of travel shall not be required
between stories within an individual unit;
(e)
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
and
(f)
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that the Borough of Hawthorne has collected funds
from the developer sufficient to make 10% of the adaptable entrances
in the development accessible:
[1]
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]
To this end, the builder of restricted units shall deposit funds
within the Borough'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 Borough of Hawthorne for the sole purpose of making the adaptable entrance of any affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[4]
The developer of the restricted units shall submit a design
plan and cost estimate for the conversion from adaptable to accessible
entrances to the Construction Official of the Borough of Hawthorne.
[5]
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible meet
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7, and
that the cost estimate of such conversion is reasonable, payment shall
be made to the Borough's affordable housing trust fund in care
of the Borough's Chief Financial Officer, who shall ensure that
the funds are deposited into the affordable housing trust fund and
appropriately earmarked.
[6]
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is site impracticable to meet
the requirements. Determinations of site impracticability shall be
in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
C.
Maximum rents and sales prices.
(1)
In establishing rents and sales prices of affordable housing
units, the administrative agent shall follow the procedures set forth
in UHAC, utilizing the most recently published regional weighted average
of the uncapped Section 8 income limits published by HUD and by the
Court, Council on Affordable Housing, or a successor entity.
(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 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 restricted rental units shall be affordable to very-low-income
households.
(4)
The maximum sales price of restricted ownership units within
each affordable development shall be affordable to households earning
no more than 70% of median income, and each affordable development
must achieve an affordability average of 55% for restricted ownership
units; in achieving this affordability average, moderate-income ownership
units must be available for at least three different prices for each
bedroom type, and low-income ownership units must be available for
at least two different prices for each bedroom type.
(5)
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units other
than assisted-living facilities 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 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
household size, including an allowance for tenant paid utilities,
as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented;
provided, however, that the rent shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(9)
Income limits for all units that are part of the Borough's
Housing Element and Fair Share Plan, and for which income limits are
not already established through a federal program exempted from the
Uniform Housing Affordability Controls pursuant to N.J.A.C. 5:80-26.1,
shall be updated by the Borough annually within 30 days of the publication
of determinations of median income by HUD as follows:
(a)
The income limit for a moderate-income unit for a household
of four shall be 80% of the HUD determination of the median income
for COAH Region 1 for a family of four. The income limit for a low-income
unit for a household of four shall be 50% of the HUD determination
of the median income for COAH Region 1 for a family of four. The income
limit for a very low-income unit for a household of four shall be
30% of the HUD determination of the median income for COAH Region
1 for a family of four. These income limits shall be adjusted by household
size based on multipliers used by HUD to adjust median income by household
size. In no event shall the income limits be less than the previous
year.
(10)
In establishing sale prices and rents of affordable housing
units, the Administrative Agent shall follow the procedures set forth
in UHAC, utilizing the regional income limits established by the Council:
(a)
The price of owner-occupied affordable units may increase annually based on the percentage increase in the regional median income limit for each housing region determined pursuant to Subsection C(9). In no event shall the maximum resale price established by the administrative agent be lower than the last recorded purchase price.
(b)
The rent of affordable units may be increased annually based
on the permitted percentage increase in the Housing Consumer Price
Index for the Northern New Jersey Area, upon its publication for the
prior calendar year. This increase shall not exceed 9% in any one
year. Rents for units constructed pursuant to low-income housing tax
credit regulations shall be indexed pursuant to the regulations governing
low-income housing tax credits.
D.
Utilities:
(1)
Affordable units shall utilize the same type of heating source
as market units within an inclusionary development.
(2)
Tenant-paid utilities that are included in the utility allowance
shall be so stated in the lease and shall be consistent with the utility
allowance approved by DCA for its Section 8 program.
A.
In referring certified households to specific restricted units, to
the extent feasible, and without causing an undue delay in occupying
the unit, the administrative agent shall strive to:
B.
Additional provisions related to occupancy standards (if any) shall
be provided in the municipal operating manual.
A.
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this chapter until the Borough of Hawthorne elects to release the
unit from such requirements; however, and prior to such an election,
a restricted ownership unit must remain subject to the requirements
of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at
least 30 years.
B.
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
C.
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the administrative agent shall determine
the restricted price for the unit and shall also determine the nonrestricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value.
D.
At the time of the first sale of the unit, the purchaser shall execute
and deliver to the administrative agent a recapture note obligating
the purchaser (as well as the purchaser's heirs, successors and
assigns) to repay, upon the first nonexempt sale after the unit's
release from the requirements of this chapter, an amount equal to
the difference between the unit's non-restricted fair market
value and its restricted price, and the recapture note shall be secured
by a recapture lien evidenced by a duly recorded mortgage on the unit.
E.
The affordability controls set forth in this chapter shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted-ownership units.
F.
A restricted-ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all code standards upon the first
transfer of title that follows the expiration of the applicable minimum
control period provided under N.J.A.C. 5:80-26.5(a), as may be amended
and supplemented.
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:
(1)
The initial purchase price for a restricted ownership unit shall
be approved by the Administrative Agent.
(2)
The Administrative Agent shall approve all resale prices, in
writing and in advance of the resale, to assure compliance with the
foregoing standards.
(3)
The method used to determine the condominium association fee
amounts and special assessments shall be indistinguishable between
the affordable unit owners and the market unit owners.
(4)
The owners of restricted ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of capital improvements. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
A.
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income and moderate-income ownership units shall be reserved for households
with a gross household income less than 80% of median income.
B.
The Administrative Agent shall certify a household as eligible for
a restricted ownership unit when the household is a low-income household
or a moderate-income household, as applicable to the unit, and the
estimated monthly housing cost for the particular unit (including
principal, interest, taxes, homeowner and private mortgage insurance
and condominium or homeowner association fees, as applicable) does
not exceed 33% of the household's certified monthly income.
A.
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the Administrative Agent shall determine in writing
that the proposed indebtedness complies with the provisions of this
section.
B.
With the exception of original purchase money mortgages, during a
control period, neither an owner nor a lender shall at any time cause
or permit the total indebtedness secured by a restricted ownership
unit to exceed 95% of the maximum allowable resale price of that unit,
as such price is determined by the administrative agent in accordance
with N.J.A.C. 5:80-26.6(b).
A.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this chapter until the Borough of Hawthorne elects to release the
unit from such requirements pursuant to action taken in compliance
with N.J.A.C. 5:80-26.1, as may be amended and supplemented, and prior
to such an election, a restricted rental unit must remain subject
to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented,
for at least 30 years. For new projects receiving 9% low-income housing
tax credits, a control period of not less than a thirty-year compliance
period plus a fifteen-year extended use period shall be required.
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 Passaic County. 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 chapter, despite the occurrence of any of the following
events:
A.
A written lease shall be required for all restricted rental units,
except for units in an assisted-living residence, and tenants shall
be responsible for security deposits and the full amount of the rent
as stated on the lease. A copy of the current lease for each restricted
rental unit shall be provided to the administrative agent.
B.
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted-living residence, to
cover the customary charges for food and services) without the express
written approval of the administrative agent.
C.
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the administrative agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this chapter.
A.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
(1)
Very-low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of median
income.
(2)
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of median income.
(3)
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of median income.
B.
The administrative agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(1)
The household currently pays more than 35% (40% for households
eligible for age-restricted units) of its gross household income for
rent, and the proposed rent will reduce its housing costs;
(2)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(3)
The household is currently in substandard or overcrowded living
conditions;
(4)
The household documents the existence of assets with which the
household proposes to supplement the rent payments; or
(5)
The household documents propose 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 Borough 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.
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.
In addition, the affirmative marketing plan shall maintain certain
notification requirements. 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 Passaic, Hudson, Passaic and Sussex Counties.
D.
The Borough has the ultimate responsibility for adopting the affirmative
marketing plan and for the proper administration of the affirmative
marketing program, including initial sales and rentals and resales
and re-rentals. The administrative agent designated by the Borough
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 four months (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;
the municipal administration building and the municipal library in
the Borough in which the units are located; and the developer's
rental office. Pre-applications shall be emailed or mailed to prospective
applicants upon request.
I.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
J.
In addition to other affirmative marketing strategies, the administrative
agent shall provide specific notice of the availability of affordable
housing units in Hawthorne to the following entities: Fair Share Housing
Center, the New Jersey State Conference of the NAACP, the Latino Action
Network. Passaic County NAACP, Passaic County NAACP, Passaic County
Urban League, Passaic County Housing Coalition, and Supportive Housing
Association.
A.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, municipal fines, a requirement
for household recertification, acceleration of all sums due under
a mortgage, recoupment of any funds from a sale in the violation of
the regulations, injunctive relief to prevent further violation of
the regulations, entry on the premises, and specific performance.
B.
After providing written notice of a violation to an owner, developer
or tenant of an affordable unit and advising the owner, developer
or tenant of the penalties for such violations, the municipality may
take the following action against the owner, developer or tenant for
any violation that remains uncured for a period of 60 days after service
of the written notice:
(1)
The municipality may file a court action pursuant to N.J.S.A.
2A:58-11 alleging a violation, or violations, of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
found by the court to have violated any provision of the regulations
governing affordable housing units the owner, developer or tenant
shall be subject to one or more of the following penalties, at the
discretion of the court:
(a)
A fine of not more than $500 per day or imprisonment for a period
not to exceed 90 days, or both. Each and every day that the violation
continues or exists shall be considered a separate and specific violation
of these provisions and not as a continuing offense;
(b)
In the case of an owner who has rented his or her affordable
unit in violation of the regulations governing affordable housing
units, payment into the Borough's affordable housing trust fund
of the gross amount of rent illegally collected;
(c)
In the case of an owner who has rented his or her affordable
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation
costs, as determined by the court.
(2)
The Borough may file a court action in the Superior Court seeking
a judgment, which would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any judgment shall be enforceable as if the same were
a judgment of default of the First Purchase Money Mortgage and shall
constitute a lien against the affordable unit.
(a)
Such judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the affordable
unit of the violating owner shall be sold at a sale price which is
not less than the amount necessary to fully satisfy and pay off any
first purchase money mortgage and prior liens and the costs of the
enforcement proceedings incurred by the municipality, including attorney's
fees. The violating owner shall have the right to possession terminated
as well as the title conveyed pursuant to the Sheriff's sale.
(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 affordable unit. The excess, if any, shall be applied to
reimburse the municipality for any and all costs and expenses incurred
in connection with either the court action resulting in the judgment
of violation or the Sheriff's sale. In the event that the proceeds
from the Sheriff's sale are insufficient to reimburse the municipality
in full as aforesaid, the violating owner shall be personally responsible
for and to the extent of such deficiency, in addition to any and all
costs incurred by the municipality in connection with collecting such
deficiency. In the event that a surplus remains after satisfying all
of the above, such surplus, if any, shall be placed in escrow by the
municipality for the owner and shall be held in such escrow for a
maximum period of two years or until such earlier time as the owner
shall make a claim with the municipality for such. Failure of the
owner to claim such balance within the two-year period shall automatically
result in a forfeiture of such balance to the municipality. Any interest
accrued or earned on such balance while being held in escrow shall
belong to and shall be paid to the municipality, whether such balance
shall be paid to the owner or forfeited to the municipality.
(c)
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 affordable 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 municipality may acquire title to the affordable
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 affordable unit could have
been sold under the terms of the regulations governing affordable
housing units. This excess shall be treated in the same manner as
the excess which would have been realized from an actual sale as previously
described.
(e)
Failure of the affordable 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 affordable 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 designated
pursuant to this chapter shall be filed in writing with the court,
COAH, or a successor entity.
A.
On the first anniversary of the execution of the Borough's settlement
agreement with Fair Share Housing Center RE:/in the matter of the
Borough of Hawthorne, County of Passaic, Docket No. PAS-L-2412-15,
which was executed by the Borough on June 8, 2020, and every anniversary
thereafter through the end of the period of protection from litigation
referenced in said agreement, the Borough shall provide annual reporting
of its Affordable Housing Trust Fund activity to the New Jersey Department
of Community Affairs, Council on Affordable Housing or Division of
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 Division of Local Government Services. 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.
On the first anniversary of the execution of the Borough's settlement
agreement with Fair Share Housing Center RE:/in the matter of the
Borough of Hawthorne, County of Passaic, Docket No. PAS-L-2412-15,
which was executed by the Borough on June 8, 2020, and every anniversary
thereafter through the end of this agreement, the Borough shall provide
annual reporting of the status of all affordable housing activity
within the Borough through posting on the municipal website, with
copies provided to Fair Share Housing Center, using forms previously
developed for this purpose by the Council on Affordable Housing or
any other forms endorsed by the court-appointed special master and
Fair Share Housing Center.
C.
For the midpoint realistic opportunity review due on July 1, 2020,
as required pursuant to N.J.S.A. 52:27D-313, the Borough shall post
on its municipal website, with copies provided to Fair Share Housing
Center, a status report as to its implementation of its affordable
housing plan and an analysis of whether any unbuilt sites or unfulfilled
mechanisms continue to present a realistic opportunity. Such posting
shall invite any interested party to submit comments to the Borough,
with copies provided to Fair Share Housing Center, regarding whether
any sites no longer present a realistic opportunity and should be
replaced. Any interested party may, by motion, request a hearing before
the court regarding these issues.
D.
For the review of very-low-income housing requirements required by
N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary of
the execution of the Borough's settlement agreement with Fair
Share Housing Center RE:/in the matter of the Borough of Hawthorne,
County of Passaic, Docket No. PAS-L-2412-15, which was executed by
the Borough on June 8, 2020, and every third year thereafter, the
Borough shall post on its municipal website, with copies provided
to Fair Share Housing Center, a status report as to its satisfaction
of its very-low-income requirements, including the family very-low-income
requirements referenced herein. Such posting shall invite any interested
party to submit comments to the Borough, with copies provided to Fair
Share Housing Center, on the issue of whether the municipality has
complied with its very-low-income housing obligation.
A.
Purpose. This section is intended to ensure that any site that benefits
from a rezoning, variance, site plan approval or redevelopment plan
approved by the Borough, Planning Board or Zoning Board of Adjustment
that results in multifamily residential development of five dwelling
units or more produces affordable housing at a set-aside rate of 20%
for affordable for-sale units and at a set-aside rate of 15% for affordable
rental units. This chapter shall apply except where inconsistent with
applicable law.
B.
If the Borough, the Borough Planning Board or Zoning Board of Adjustment
permits the construction of multifamily or single-family attached
residential development that is "approvable" and "developable," as
defined at N.J.A.C. 5:93-1.3, the Borough or the Borough's Land
Use Board shall require that an appropriate percentage of the residential
units be set aside for low- and moderate-income households.
C.
This requirement shall apply beginning with the effective date of
this chapter to any multifamily or single-family attached residential
development, including the residential portion of a mixed-use project,
which consists of five or more new residential units at a density
of six dwelling units or more per acre, whether permitted by a zoning
amendment, site plan approved by the Borough Planning Board, use variance
granted by the Borough's Zoning Board of Adjustment, or adoption
of a redevelopment plan or amended redevelopment plan in areas in
need of redevelopment or rehabilitation.
D.
For any such development for which the Borough's land use ordinances
already permitted residential development as of the effective date
of this chapter, this requirement shall only apply if the Borough
permits an increase in approvable and developable gross residential
density to at least twice the permitted approvable and developable
gross residential density as of the effective date of this chapter.
E.
Nothing in this section precludes the Borough, Borough's Planning
Board or Board of Adjustment from imposing an affordable housing set-aside
in a development not required to have a set-aside pursuant to this
section consistent with N.J.S.A. 52:27D-311(h) and other applicable
law.
F.
For inclusionary projects in which the low- and moderate-income 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%.
Where the set-aside percentage results in a fractional unit, the total
set-aside requirement shall be rounded upwards to the next whole number.
G.
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.
H.
This requirement does not apply to any sites or specific zones otherwise
identified in the Borough's Settlement Agreement with Fair Share
Housing Center (FSHC) or in the Borough's Housing Element and
Fair Share Plan, for which density and set-aside standards shall be
governed by the specific standards set forth therein.
I.
Furthermore, this requirement shall not apply to developments containing
four or less dwelling units.
J.
Where a developer demolishes existing dwelling units and builds new
dwelling units on the same site, the provisions of this section shall
apply only if the net number of dwelling units is five or more.
K.
All subdivision and site plan approvals of qualifying residential
developments shall be conditioned upon compliance with the provisions
of this section.
L.
All affordable units to be produced pursuant to this section the
Uniform Housing Affordability Controls rules (N.J.A.C. 5:80-26.1 et
seq.), as may be amended from time to time.
In Holmdel Builder's Association v. Holmdel Borough, 121
N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985, N.J.S.A.
52:27D-301 et seq., and the State Constitution, subject to the imposition
of rules by COAH. The purpose of this section is to establish standards
for the collection, maintenance and expenditure of development fees
pursuant to COAH's adopted rules. Fees collected pursuant to
this section shall be used for the sole purpose of providing low-
and moderate-income housing. This section shall be interpreted within
the framework of COAH's rules on development fees.
A.
COAH
DEVELOPMENT FEES
EQUALIZED ASSESSED VALUE (EAV)
JUDGMENT OF REPOSE
SUBSTANTIVE CERTIFICATION
Definitions - affordable housing development fees. As used in this
article, the following terms shall have the meanings indicated:
The New Jersey Council on Affordable Housing.
Money paid by an individual, person, partnership, association,
company or corporation related to the improvement of property as permitted
in COAH's rules and as required by this section.
The value of a property determined by the Municipal Tax Assessor
through a process designed to ensure that all property in the municipality
is assessed at the same assessment ratio or ratios required by law.
Estimates at the time of issuance of a building permit may be obtained
utilizing estimates for construction cost. Final equalized assessed
value will be determined at project completion by the Municipal Tax
Assessor.
A judgment issued by the Superior Court approving a municipality's
plan to satisfy its fair share obligation.
A determination by COAH, the Superior Court of New Jersey
or any entity approved by state law to act on affordable housing matters
approving a municipality's housing element and fair share plan
in accordance with the provisions of the Fair Housing Act (N.J.S.A.
52:27D-301 et seq.) and the rules and criteria as set forth herein.
A.
Residential development fees. Residential development shall be subject
to an affordable housing development fee as follows:
(1)
One-half of 1% of the equalized assessed value (EAV), or the
coverage amount on the homeowner warranty document for a for-sale
unit or the appraised value on the document utilized for construction
financing for a rental unit, of each new residential dwelling unit,
provided no increased density is permitted.
(2)
If a "d" variance for an increase in density is granted pursuant
to N.J.S.A. 40:55D-70.d(5) in any zoning district in the Borough of
Hawthorne, then the additional residential units realized above what
is permitted by right under the existing zoning will incur a bonus
development fee of 6% of the EAV rather than the development fee of
1/2 of 1%. If the zoning on a site has changed during the two-year
period preceding the filing of the "d" variance application, the 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 "d" variance application. The development
fee may be based on the EAV or on the coverage amount on the homeowner
warranty document for each additional for-sale unit or on appraised
value on the document utilized for construction financing for a rental
unit.
(3)
Developers of sites zoned for inclusionary development in the
Borough's R-6 Affordable Housing Zone shall be required to make
a payment to the Hawthorne Housing Trust Fund in lieu of the on-site
construction of low- and moderate-income housing units, in accordance
with the settlement agreement approved by Superior Court on April
18, 2004.
B.
Nonresidential development fees. Nonresidential development shall
be subject to an affordable housing development fee as follows:
(1)
One percent of the equalized assessed value (EAV), or the appraised
value on the document utilized for construction financing, for all
new nonresidential development.
(2)
One percent of the increase in equalized assessed value (EAV)
due to expansion, full or partial demolition and reconstruction, improvement,
and/or alteration of any nonresidential building.
(3)
If a "d" variance increasing the permitted floor area is granted
pursuant to N.J.S.A. 40:55D-70.d.(4), then the additional floor area
realized greater than that which is permitted by right under the existing
zoning will incur a bonus development fee of 6% of the EAV rather
than the development fee of 1%. If the zoning on a site has changed
during the two-year period preceding the filing of the "d" variance
application, the floor area permitted by right for the purposes of
calculating the bonus development fee shall be the maximum amount
of floor area permitted by right during the two-year period preceding
the filing of the "d" variance application.
A.
Developers of low- and moderate-income units shall be exempt from
paying development fees.
B.
Developers of new nonresidential structures, except as excluded herein,
and new residential structures, shall pay a development fee in the
manner prescribed herein.
C.
Developers that expand an existing nonresidential structure and expand
a residential structure where it results in additional dwelling units
shall pay a development fee. The development fee shall be calculated
based on the increase in the equalized assessed value of the improved
structure.
D.
Developers that have received preliminary or final approval prior
to the effective date of this article shall be exempt from paying
a development fee unless the developer seeks a substantial change
in the approval. Examples of a substantial change include a substantial
alteration in site layout, development density, or types of uses within
the development.
E.
Developers of any church, library, school, college, governmental
facility, hospital for humans, or nursing home shall be exempt from
paying a development fee.
A.
Developers shall pay 50% of the calculated development fee to the
Borough of Hawthorne at the issuance of building permits. The development
fee shall be estimated by the Tax Assessor prior to the issuance of
building permits.
B.
Developers shall pay the remaining fee to the Borough of Hawthorne
at the issuance of certificates of occupancy. At the issuance of certificates
of occupancy, the Tax Assessor shall calculate the equalized assessed
value and the appropriate development fee. The developer shall be
responsible for paying the difference between the fee calculated at
the certificate of occupancy and the amount paid at building permit.
A.
There is hereby created an interest-bearing housing trust fund in
such bank as may be selected for the purpose of receiving development
fees from residential and nonresidential developers, which fund shall
be maintained in a separate account at a financial institution designated
by the Chief Financial Officer, who shall be responsible for the administration
of the housing trust fund and authorization for any expenditures. All development fees paid by developers
pursuant to this article shall be deposited in this fund. No money
shall be expended from the housing trust fund unless the expenditure
conforms to a spending plan approved by Superior Court or COAH.
B.
If the Superior Court or COAH determines that the Borough of Hawthorne
is not in conformance with COAH's rules on development fees,
the Superior Court or COAH is authorized to direct the manner in which
all development fees collected pursuant to this article shall be expended.
Such authorization is pursuant to this article, COAH's rules
on development fees, and the written authorization from the governing
body to the financial institution that is the depository for the Borough
housing trust fund. The Borough shall execute an escrow agreement
with COAH and the financial institution where the housing trust fund
is maintained to enable COAH to monitor disbursement of collected
development fees and direct the expenditure of development fees, after
proper notice, hearing and Court or COAH approval, if the imposition,
collection, and/or expenditure of fees does not conform with this
article, COAH rules, or the Court or COAH-approved spending plan.
A.
Money deposited in the Hawthorne Housing Trust Fund may be used for
any activity approved by COAH or by, when applicable, a Court of competent
jurisdiction, addressing the Borough of Hawthorne's low- and
moderate-income housing obligation. Such activities may include, but
are not necessarily limited to, housing rehabilitation, new construction,
regional contribution agreements, the purchase of land for low- and
moderate-income housing, extensions and/or improvements of roads and
infrastructure to low- and moderate-income housing sites, assistance
designed to render units more affordable to low- and moderate-income
households and administrative costs necessary to implement the Borough
of Hawthorne's Housing Element and Fair Share Plan. The expenditure
of all money shall conform to a spending plan approved by COAH or,
when applicable, by a Court of competent jurisdiction.
B.
At least 30% of the fees collected shall be devoted to render units
more affordable unless exempt as per N.J.A.C. 5:93-8-16(c). Such exemptions
include fees used to fund the Borough of Hawthorne's rehabilitation
program, a regional contribution agreement (RCA), or a new construction
project. Examples of activities that render units more affordable
include, but are not limited to, down payment and closing cost assistance,
low interest loans and rental assistance.
C.
No more than 20% of the fees collected shall be expended on administration,
including, but not limited to, salaries and benefits for municipal
employees or consultant fees necessary to develop or implement: a
rehabilitation program; a new construction program; a regional contribution
agreement, an affirmative marketing program, other costs necessary
to develop, revise or implement the Borough of Hawthorne's Housing
Element and Fair Share Plan. Administrative funds may be used for
income qualification of households, monitoring the turnover of sale
and rental units, compliance with COAH monitoring requirements, and
review of regional affirmative marketing plans for specific inclusionary
developments in Hawthorne. Development fees shall not be used to defray
the costs of existing municipal staff. Development fee administrative
costs are calculated and may be expended at the end of each year or
upon receipt of the fees.
D.
Development fee revenues shall not be expended to reimburse the Borough
of Hawthorne for housing activities that preceded its judgment of
repose from the Superior Court.
The Borough shall complete and return to COAH all monitoring
forms related to the collection of development fees, expenditures
or revenues and implementation of the spending plan certified by COAH.
Quarterly financial reports and annual program implementation and
auditing reports shall be completed by the Borough on forms designed
by COAH.
This article shall expire if:
A.
The court vacates the Borough of Hawthorne's judgment of repose
or revokes this article;
B.
The Borough of Hawthorne's judgment of repose expires prior
to the Borough of Hawthorne filing an adopted housing element with
COAH, petitioning for substantive certification, or receiving COAH's
approval of this article;
C.
COAH dismisses or denies the Borough of Hawthorne's petition
for substantive certification; or
D.
If the Borough of Hawthorne is under COAH's jurisdiction and
has a certified housing element and fair share plan, COAH revokes
substantive certification or this article.
A.
In the event that any of the conditions set forth in Subsection B below occur, COAH shall be authorized, on behalf of the Borough, to direct the manner in which all development fees collected pursuant to this article shall be expended. Should any such condition occur, such revenues shall immediately become available for expenditure at the direction of COAH upon the Borough Clerk's receipt of written notification from COAH that such a condition has occurred. In furtherance of the foregoing, the Borough shall, in establishing a bank account pursuant this article, ensure that the Borough has provided whatever express written authorization which may be required by the bank to permit COAH to direct disbursement of such revenues from the account following the delivery to the bank of the aforementioned written notification provided by COAH to the Borough Clerk.
B.
Occurrence of the following may result in COAH taking an action pursuant to Subsection A above: failure to submit a spending plan within the time limits imposed by COAH; failure to meet deadlines for information required by COAH in its review of this article, the Borough's housing element or spending plan; failure to address COAH's conditions for approval of a plan to spend development fees within the deadlines imposed by COAH; failure to address COAH's condition for substantive certification within the deadlines imposed by COAH; failure to submit accurate monitoring reports within the time limits imposed by COAH; failure to implement the spending plan for development fees within the time limits imposed by COAH, or within reasonable extensions granted by COAH; expenditure of development fees on activities not permitted by COAH.
A.
The position of Municipal Housing Liaison (MHL) for the Borough of
Hawthorne is established by this chapter. The Borough shall make the
actual appointment of the MHL by means of a resolution.
(1)
The MHL must be either a full-time or part-time employee of
Hawthorne.
(2)
The person appointed as the MHL must be reported to the court
and thereafter posted on the Borough's website.
(3)
The MHL must meet all the requirements for qualifications, including
initial and periodic training, if such training is made available
by COAH or the DCA.
(4)
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of Hawthorne, including the following responsibilities which may not
be contracted out to the administrative agent, or the administrative
agent appointed by a specific developer:
(a)
Serving as the municipality's primary point of contact
for all inquiries from the state, affordable housing providers, administrative
agents and interested households;
(b)
The implementation of the Affirmative Marketing Plan and affordability
controls;
(c)
When applicable, supervising any contracting administrative
agent;
(d)
Monitoring the status of all restricted units in the Borough's
Fair Share Plan;
(e)
Compiling, verifying and submitting annual reports as required;
(f)
Coordinating meetings with affordable housing providers and
administrative agents, as applicable; and
(g)
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by the Affordable Housing Professionals of New Jersey
(AHPNJ), if such continuing education opportunities are made available
by COAH or the DCA.
B.
Subject to the approval of the court, the Borough of Hawthorne shall
designate one or more administrative agent(s) to administer and to
affirmatively market the affordable units constructed in the Borough
in accordance with UHAC and this chapter. An 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 may
be subject to approval of the court appointed Special Master or the
court. The Operating Manual(s) shall be available for public inspection
in the office of the Borough 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).
A.
An administrative agent may be either a designated municipal employee,
an independent entity serving under contract to and reporting to the
Borough or reporting to a specific individual developer. The fees
of the administrative agent shall be paid by the owners of the affordable
units for which the services of the administrative agent are required.
The Borough Administrative Agent shall monitor and work with any individual
administrative agents appointed by individual developers. The administrative
agent(s) shall perform the duties and responsibilities of an administrative
agent as set forth in UHAC, including those set forth in N.J.A.C.
5:80-26.14, 16 and 18 thereof, which includes:
(1)
Affirmative marketing:
(a)
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Affirmative Marketing Plan of
the Borough of Hawthorne and the provisions of N.J.A.C. 5:80-26.15;
and
(b)
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.
(2)
Household certification:
(a)
Soliciting, scheduling, conducting and following up on interviews
with interested households;
(b)
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;
(c)
Providing written notification to each applicant as to the determination
of eligibility or noneligibility;
(d)
Requiring that all certified applicants for restricted units
execute a certificate substantially in the form, as applicable, of
either the ownership or rental certificates set forth in Appendixes
J and K of N.J.A.C. 5:80-26.1 et seq.;
(e)
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;
(f)
Employing a random selection process as provided in the Affirmative
Marketing Plan of the Borough of Hawthorne when referring households
for certification to affordable units; and
(g)
Notifying the following entities of the availability of affordable
housing units in the Borough of Hawthorne: Fair Share Housing Center,
the New Jersey State Conference of the NAACP, the Latino Action Network,
the Passaic County Branch of the NAACP, Senior Citizens United Community
Services (SCUCS), and the Supportive Housing Association.
(3)
Affordability controls:
(a)
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;
(b)
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;
(c)
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Passaic
County Register of Deeds or Passaic County Clerk's office after
the termination of the affordability controls for each restricted
unit;
(d)
Communicating with lenders regarding foreclosures; and
(e)
Ensuring the issuance of Continuing Certificates of Occupancy
or certifications pursuant to N.J.A.C. 5:80-26.10.
(4)
Resales and rerentals:
(a)
Instituting and maintaining an effective means of communicating
information between owners and the Borough's administrative agent,
or any administrative agent appointed by a specific developer, regarding
the availability of restricted units for resale or re-rental; and
(b)
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 re-rental.
(5)
Processing requests from unit owners:
(a)
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;
(b)
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;
(c)
Notifying the municipality of an owner's intent to sell
a restricted unit; and
(d)
Making determinations on requests by owners of restricted units
for hardship waivers.
(6)
Enforcement:
(a)
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;
(b)
Securing from all developers and sponsors of restricted units,
at the earliest point of contact in the processing of the project
or development, written acknowledgement of the requirement that no
restricted unit can be offered, or in any other way committed, to
any person, other than a household duly certified to the unit by the
Borough's administrative agent, or any administrative agent appointed
by a specific developer;
(c)
Posting annually, in all rental properties (including two-family
homes), a notice as to the maximum permitted rent together with the
telephone number of the Borough's administrative agent, or any
administrative agent appointed by a specific developer, where complaints
of excess rent or other charges can be made;
(d)
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;
(e)
Establishing a program for diverting unlawful rent payments
to the Borough's Affordable Housing Trust Fund; and
(f)
Creating and publishing a written operating manual for each
affordable housing program administered by the Borough's administrative
agent, or any administrative agent appointed by a specific developer,
to be approved by the Borough Council and the court, setting forth
procedures for administering the affordability controls.
(7)
Additional responsibilities:
(a)
The Borough's administrative agent shall have the authority
to take all actions necessary and appropriate to carry out its responsibilities
hereunder.
(b)
The Borough's 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. The Borough's administrative
agent will be responsible for collecting monitoring information from
any administrative agents appointed by specific developers.
(c)
The Borough's administrative agent, or any administrative
agent appointed by a specific developer, shall attend continuing education
sessions on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
