[Ord. No. 10-16 § 1; amended 9-21-2023 by Ord. No. 23-31]
a.
This section is intended to assure that low- and moderate-income
units ("affordable units") are created with controls on affordability
over time and that low- and moderate-income households shall occupy
these units. This section shall apply except where inconsistent with
applicable law.
b.
This chapter implements and incorporates the Housing Element and
Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A.
40:55D-1 et seq. ("Fair Share Plan"), in accordance with the Settlement
Agreement entered into between the Borough and the Fair Share Housing
Center ("FSHC") on March 8, 2018 and addresses the requirements of
N.J.A.C. 5:93, as may be amended and supplemented. The Settlement
Agreement was found to be fair by the Honorable Christine A. Farrington,
J.S.C. by order issued on July 30, 2018.
c.
Consistent with that Settlement Agreement, this chapter of the Borough
Code sets forth regulations regarding the low- and moderate-income
housing units in the Borough to fulfill the constitutional obligation
to provide a realistic opportunity for the construction of its fair
share of the regional need for affordable housing for low- and moderate-income
households, the provisions known as the Substantive Rules of the New
Jersey Council on Affordable Housing ("COAH rules"), N.J.A.C. 5:93
et seq., and the Uniform Housing Affordability Controls ("UHAC"),
N.J.A.C. 5:80-26.1 et seq., except that the requirements for very-low-income
affordable housing as established in P.L. 2008, c. 46 (the "Roberts
Bill," codified at N.J.S.A. 52:27D-329.1) shall supersede those of
the UHAC.
d.
(Reserved)
e.
The Borough of Elmwood Park Planning Board adopted a Third Round
Housing Element and Fair Share Plan on November 9, 2022 pursuant to
the Municipal Land Use Law at N.J.S.A. 40:55D-1, et seq., the Settlement
Agreement with Fair Share Housing Center, the Fair Housing Act, and
applicable rules promulgated by the Council on Affordable Housing
(COAH). This chapter implements that Housing Element and Fair Share
Plan and addresses the requirements of N.J.A.C. 5:93, as may be amended
and supplemented. On or about each anniversary of the Court's
filing of the Judgment of Compliance and Repose through the end of
the period of Third Round Judgment of Repose (July 1, 2025), the Borough
will provide annual reporting of the status of all affordable housing
activity within the municipality through posting on the municipal
website with a copy of such posting provided to all parties to the
Borough's Court-approved settlement agreements, using forms previously
developed for this purpose by the Council on Affordable Housing or
any other forms endorsed by the Special Master and FSHC.
f.
The Fair Housing Act includes two provisions regarding action to
be taken by the Borough during the ten-year period of protection provided
in the Borough's agreement with FSHC. The Borough agrees to comply
with those provisions as follows:
1.
At the time of a hearing for a Third Round Judgment of Compliance
and Repose, the Borough may provide a realistic opportunity review
consistent with the midpoint review provisions at N.J.S.A. 52:27D-313,
which will consist of a status report as to its implementation of
its plan and an analysis of whether any unbuilt sites or unfulfilled
mechanisms continue to present a realistic opportunity. In the event
the Court determines that a site or mechanism no longer presents a
realistic opportunity and should be replaced or supplemented, then
the municipality shall have the first opportunity to supplement or
revise its plan to correct any deficiency.
2.
Within 30 days of the third anniversary of the Judgment of Compliance
and Repose, the Borough shall prepare a review of compliance with
the very-low-income housing requirements required by N.J.S.A. 52:27D-329.1
and its settlement agreement with Fair Share Housing Center. The Borough
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 the family very-low-income requirements referenced herein
and in the Borough's settlement agreement with FSHC. Such posting
shall invite any interested party to submit comments to the municipality
and FSHC on the issue of whether the municipality has complied with
its very-low-income housing obligation.
The reports shall be available to the public at the Borough
of Elmwood Park Municipal Building, Municipal Clerk's Office,
182 Market Street, Elmwood Park, New Jersey.
[Ord. No. 10-16 § 2;
amended 9-21-2023 by Ord. No. 23-31]
The following terms when used in this section shall have the
meanings given in this subsection:
A self-contained residential dwelling unit with a kitchen,
sanitary facilities, sleeping quarters and a private entrance, which
is created within an existing home, or through the conversion of an
existing accessory structure on the same site, or by an addition to
an existing home or accessory building, or by the construction of
a new accessory structure on the same site.
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity responsible for the administration of affordable
units in accordance with this section, N.J.A.C. 5:91, N.J.A.C. 5:93
and N.J.A.C. 5:80-26.1 et seq.
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent within the means of a low- or moderate-income
household as defined in N.J.A.C. 5:93-7.4; in the case of an ownership
unit, 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, 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 income-restricted units which may be counted toward the satisfaction
of the municipal affordable housing obligation.
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100% affordable development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act, credited
pursuant to N.J.A.C. 5:93, 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: 1) all the residents of the development where the unit
is situated are 62 years or older; or 2) at least 80% of the units
are occupied by one person that is 55 years or older (except that
persons younger than 19 may not be permanent residents); or 3) 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 New Jersey Department of Community
Affairs; residential health-care facilities as regulated by the New
Jersey Department of Health and Senior Services; 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 household that has been certified by an Administrative
Agent as a low-income household or moderate-income household.
The Council on Affordable Housing, which is in, but not of,
the Department of Community Affairs of the State of New Jersey, that
was established under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301
et seq.).
The 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.
The plan that describes the mechanisms, strategies and the
funding sources, if any, by which the Borough proposes to address
its affordable housing obligation as established in the housing element,
including the draft ordinances necessary to implement that plan and
addresses the requirements of N.J.A.C. 5:93-5.
The portion of the municipality's Master Plan, required
by the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-28b(3) and
the Act, that includes the information required by N.J.A.C. 5:93-5.1
and establishes the Borough's fair share obligation.
A development containing both affordable units and market
rate units. This term includes, but is not necessarily limited to:
new construction, the conversion of a nonresidential structure to
residential and the creation of new affordable units through the reconstruction
of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the median household income for the applicable COAH
housing region.
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 COAH
housing region, as adopted annually by COAH or as approved by the
New Jersey Superior Court.
A household with a total gross annual household income in
excess of 50% but less than 80% of the median household income for
the applicable COAH housing region.
A restricted unit that is affordable to a moderate-income
household.
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 COAH housing region affordable
to a four-person household with an income of at 80% of the regional
median as defined by adopted/approved regional income limits.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6, which, for purposes of affordable housing credit, involves
at least one major system of the building or structure.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
A dwelling unit, whether a rental unit or ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
An expert appointed by a Superior Court Judge to assist the
Court, the municipality and any intervenors or other interested parties
in applying the Mount Laurel Doctrine, including a determination of
municipal fair share and an evaluation of the effectiveness of the
municipality's Fair Share Plan to the extent permitted by law.
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 COAH
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 rehabilitation.
[Ord. No. 10-16 § 3;
amended 9-21-2023 by Ord. No. 23-31]
The Borough of Elmwood Park has determined that it will use
the following mechanisms to satisfy its affordable housing obligations:
a.
A Rehabilitation Program.
1.
The Borough of Elmwood Park's rehabilitation program 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.
2.
Both owner occupied and renter occupied units shall be eligible for
rehabilitation funds to the extent permitted by law.
3.
All rehabilitated 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.
4.
The Borough of Elmwood Park shall dedicate a minimum of $20,000 for
each unit to be rehabilitated through this program, reflecting the
minimum hard cost of rehabilitation for each unit.
5.
The Borough of Elmwood Park shall adopt a resolution committing to
fund any shortfall in the rehabilitation programs for the Borough
of Elmwood Park.
6.
The Borough of Elmwood Park shall designate, subject to the laws
of the State of New Jersey, one or more Administrative Agents to administer
the rehabilitation program in accordance with N.J.A.C. 5:91 and N.J.A.C.
5:93. The Administrative Agent(s) shall provide a rehabilitation manual
for the owner occupancy rehabilitation program and a rehabilitation
manual for the rental occupancy rehabilitation program to be adopted
by resolution of the Governing Body. Both rehabilitation manuals shall
be available for public inspection in the Office of the Municipal
Clerk and in the office(s) of the Administrative Agent(s).
7.
Units in a rehabilitation program shall be exempt from the Uniform
Housing Affordability Controls (UHAC), but shall be administered in
accordance with the following:
(a)
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is rerented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a low-or moderate-income household at an affordable rent
and affirmatively marketed pursuant to N.J.A.C. 5:93-11 and UHAC.
(b)
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to this chapter and UHAC.
(c)
Rents in rehabilitated units may increase annually based on
the standards in this chapter.
(d)
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.
[Ord. No. 10-16 § 4;
amended 9-21-2023 by Ord. No. 23-31]
a.
Borough-wide Set Aside Requirement.
1.
Consistent with the requirement at Section 7.5.c of the Settlement
Agreement between Elmwood Park Borough and Fair Share Housing Center,
any new multi-family development (including a mixed-use project with
a multi-family residential component) (a) approved by the Planning
Board or Zoning Board or created through a Redevelopment or Rehabilitation
Plan and (b) having a density of at least six dwelling units per acre
resulting in the creation of five or more new units shall be required
to set aside 15% (if rental) or 20% (if for-sale) of the constructed
number of residential units for very-low, low-, and moderate-income
households.
(a)
The Borough reserves the right to negotiate a modification to
the above set-aside requirement in a redevelopment project where the
designated redeveloper agrees to enter into a public-private partnership
or a community benefit agreement with the Borough, the Elmwood Park
Board of Education, or a local community improvement group.
(b)
All set-aside units shall conform to the Uniform Housing Affordability
Standards at N.J.A.C. 5:80-26.1 et seq. as modified by the Settlement
Agreement with Fair Share Housing Center and with this chapter.
b.
AH-1 and AH-2 Zones: The zoning of the AH-1 and AH-2 Zone Districts
provides for a 15% set-aside for restricted units, to a maximum of
16 units in the AH-1 Zone District and a maximum of eight units in
the AH-2 Zone District.
1.
Where an executed development agreement exists for affordable housing
on a specific site or sites, list the sites below and identify the
density and set-aside for each:
(a)
Elmwood Park River Drive Development, LLC (Block 1201 Lot 3.01)
has been approved to provide for a 15% set-aside for restricted units,
to a maximum of 16 restricted units, and a density of 40 units per
acre.
(b)
Elmwood Park River Drive Development, LLC (Block 1201 Lot 4.01)
has been approved to provide for a 15% set-aside for restricted units,
to a maximum of eight restricted units, and a density of 25 units
per acre and up to 18,000 square feet of commercial floor area.
c.
Phasing. Final site plan or subdivision approval for a project consisting
of both market-rate and affordable housing units (inclusionary developments)
shall be contingent upon the development meeting the following phasing
schedule for low- and moderate-income units, whether developed in
a single-phase development or in a multi-phase development:
|
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
|
d.
Design. In inclusionary developments, to the extent possible, low-
and moderate-income units shall be integrated with the market units
and shall be no further distant, on average, from common amenities
provided in the development than market-rate units.
e.
Payments-in-Lieu and Off-Site Construction. The standards for the
collection of payments in lieu of constructing affordable units or
standards for constructing affordable units off site shall be in accordance
with the requirements below: The base dollar amount of the payment
in lieu of constructing an affordable unit at the time of adoption
of this chapter shall be pursuant to COAH's regulations and/or
the amount in a development pro forma on file with the Borough Clerk.
This amount shall be adjusted periodically by the Borough to reflect
the most current and accurate market conditions or better cover the
cost to the Borough to subsidize affordable housing construction.
The payment shall be imposed as a condition of development approval
by the Planning Board, to the extent permitted by law.
1.
During the development approval process, a developer may demonstrate
to the governing body that the actual construction cost of an affordable
unit less estimated capitalized revenue at the development in question
is lower than the imposed payment in lieu in the preceding paragraph.
At its discretion, the governing body may impose a payment in lieu
amount equal or proximate to the amount estimated by the developer,
along with other reasonable public health and safety impact fees and
costs.
f.
Utilities.
1.
Affordable units shall utilize the same type of heating source as
market units within the affordable development.
2.
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 its Section 8 program.
[Ord. No. 10-16 § 5;
amended 9-21-2023 by Ord. No. 23-31]
The following general guidelines apply to all newly constructed
developments that contain low- and moderate-income housing units,
including any currently unanticipated future developments that will
provide low- and moderate-income housing units.
a.
Low-Moderate Split and Bedroom Distribution of Affordable Housing
Units.
1.
The fair share obligation shall be divided equally between low- and
moderate-income units, except that where there is an odd number of
affordable housing units, the extra unit shall be a low-income unit.
Within rental developments, of the total number of affordable
rental units, at least 13% shall be affordable to very-low-income
households.
2.
In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be low-income units, including
at least 13% very-low income.
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.
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-31 la et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that the Borough of Elmwood Park has collected
funds from the developer sufficient to make 10% of the adaptable entrances
in the development accessible:
(1)
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
(2)
To this end, the builder of restricted units shall deposit funds
within the Borough of Elmwood Park'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 paragraph (2) above shall be used
by the Borough of Elmwood Park 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 Elmwood Park.
(5)
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible meet
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7, and
that the cost estimate of such conversion is reasonable, payment shall
be made to the Borough of Elmwood Park's affordable housing trust
fund in care of the Municipal Treasurer who shall ensure that the
funds are deposited into the affordable housing trust fund and appropriately
earmarked.
(6)
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is site impracticable to meet
the requirements. Determinations of site impracticability shall be
in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
c.
Maximum Rents and Sales Prices.
1.
In establishing rents and sales prices of affordable housing units,
the Administrative Agent shall follow the procedures set forth in
UHAC and by the Superior Court or other relevant authority, utilizing
the approved regional income limits.
2.
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted low- and
moderate-income units shall be affordable to households earning no
more than 52% of median income.
3.
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units.
(a)
At least 13% of all low-and moderate-income rental units shall
be affordable to households earning no more than 30% of median income.
4.
The maximum sales price of restricted ownership units within each
affordable development shall be affordable to households earning no
more than 70% of median income, and each affordable development must
achieve an affordability average of 55% for restricted ownership units;
in achieving this affordability average, moderate-income ownership
units must be available for at least three different prices for each
bedroom type, and low-income ownership units must be available for
at least two different prices for each bedroom type.
5.
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units other
than assisted living facilities, the following standards shall be
used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a 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,
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 homeowners'
association fees do not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4,
as may be amended and supplemented; provided, however, that the price
shall be subject to the affordability average requirement of N.J.A.C.
5:80-26.3, as may be amended and supplemented.
8.
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
household size as determined under N.J.A.C. 5:80-26.4, as may be amended
and supplemented; provided, however, that the rent shall be subject
to the affordability average requirement of N.J.A.C. 5:80-26.3, as
may be amended and supplemented.
9.
The price of owner-occupied low- and moderate-income units may increase
annually based on the percentage increase in the regional median income
limit for each housing region. In no event shall the maximum resale
price, established by the Administrative Agent be lower than the last
recorded purchase price.
10.
Income limits for all units 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 et seq. shall
be applicable within 30 days of the annual publication of determinations
of median income by HUD as follows:
(a)
Regional income limits shall be established for the Region 1
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 Region 1. 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 calculated each year shall be the result of
applying the percentages set forth in paragraph (a) above to HUD's
determination of median income for the relevant fiscal year, and shall
be utilized until the Borough 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 Borough annually by taking the percentage
increase of the income limits calculated pursuant to paragraph (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.
11.
The rent 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. 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.
12.
Utilities. Tenant-paid utilities that are included in the utility
allowance shall be so stated in the lease and shall be consistent
with the utility allowance approved by DCA for its Section 8 program.
[Ord. No. 10-16 § 7;
amended 9-21-2023 by Ord. No. 23-31]
The requirements of this section apply to all developments that
contain affordable housing units, including any currently unanticipated
future developments that will provide affordable housing units.
a.
The Borough of Elmwood Park shall adopt by resolution an Affirmative
Marketing Plan, subject to approval of the Superior Court or other
relevant authority, in accordance with N.J.A.C. 5:80-26.15, as may
be amended and supplemented.
b.
The Affirmative Marketing Plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to housing units which are being marketed
by a developer, sponsor or owner of affordable housing. The Affirmative
Marketing Plan is also intended to target those potentially eligible
persons who are least likely to apply for affordable units in that
region. It is a continuing program that directs all marketing activities
toward COAH Housing Region 1 and covers the period of deed restriction.
c.
The Affirmative Marketing Plan shall provide a regional preference
for all households that live and/or work in COAH Housing Region 1
comprised of Bergen, Hudson, Passaic and Sussex Counties.
d.
The municipality has the ultimate responsibility for adopting the
affirmative marketing plan and for the proper administration of the
affirmative marketing program, including initial sales and rentals
and resales and re-rentals.
e.
The Administrative Agent designated by the Borough of Elmwood Park
shall assure the affirmative marketing of all affordable units consistent
with the Affirmative Marketing Plan for the municipality.
f.
In implementing the Affirmative Marketing Plan, the Administrative
Agent shall provide a list of counseling services to very-low, low-,
and moderate-income applicants on subjects such as budgeting, credit
issues, mortgage qualification, rental lease requirements, and landlord/tenant
law.
g.
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.
h.
The affirmative marketing process for available affordable units
shall begin at least four months (120 days) prior to the expected
date of occupancy.
i.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner,
unless otherwise determined or agreed to by the Borough of Elmwood
Park.
j.
Applications for affordable housing shall be available in several
locations, including, at a minimum, the County Administration Building
and/or the County Library for each county within the housing region;
the municipal administration building and the municipal library in
the municipality in which the units are located; and the developer's
rental office. Applications shall be mailed to prospective applicants
upon written request.
[Ord. No. 10-16 § 7;
amended 9-21-2023 by Ord. No. 23-31]
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.
[Added [9-21-2023 by Ord. No. 23-31]
[Ord. No. 10-16 § 8;
amended 9-21-2023 by Ord. No. 23-31]
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 controls on
affordability for a period of at least 30 years and until the municipality
takes action thereafter to release the controls on affordability.
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 non-exempt sale after the unit's
release from the requirements of this section, an amount equal to
the difference between the unit's nonrestricted fair market value
and its restricted price, and the recapture note shall be secured
by a recapture lien evidenced by a duly recorded mortgage on the unit.
e.
The affordability controls set forth in this section shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
f.
A restricted ownership unit shall be required to obtain a Continuing
Certificate of Occupancy or a certified statement from the Construction
Official stating that the unit meets all code standards upon the first
transfer of title 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.
[Ord. No. 10-16 § 9;
amended 9-21-2023 by Ord. No. 23-31]
Price restrictions for restricted ownership units shall be in
accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
including:
a.
The initial purchase price for a restricted ownership unit shall
be approved by the Administrative Agent.
b.
The Administrative Agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
c.
The method used to determine the condominium association fee amounts
and special assessments shall be indistinguishable between the low-
and moderate-income unit owners and the market unit owners.
d.
The owners of restricted ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of capital improvements. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
e.
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.
[Ord. No. 10-16 § 10;
amended 9-21-2023 by Ord. No. 23-31]
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 Borough Committee, 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.
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 homeowners' association fees, as applicable)
does not exceed 33% of the household's certified monthly income.
[Ord. No. 10-16 § 11;
amended 9-21-2023 by Ord. No. 23-31]
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).
[Ord. No. 10-16 § 12;
amended 9-21-2023 by Ord. No. 23-31]
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 controls on
affordability for a period of at least 30 years, until the municipality
takes action to release the controls on affordability. 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.
1.
Restricted rental units created as part of developments receiving
9% low-income-housing tax credits must comply with a control period
of not less than a thirty-year compliance period plus a fifteen-year
extended use period.
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 section, despite the occurrence of any of the following
events:
[Ord. No. 10-16 § 13;
amended 9-21-2023 by Ord. No. 23-31]
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 section.
[Ord. No. 10-16 § 14;
amended 9-21-2023 by Ord. No. 23-31]
a.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined as follows:
1.
Very low-income rental units shall be reserved for households with
a gross household income less than or equal to 30% of median income.
2.
Low-income rental units shall be reserved for households with a gross
household income less than or equal to 50% of median income.
3.
Moderate-income rental units shall be reserved for households with
a gross household income less than 80% of median income.
b.
The Administrative Agent shall certify a household as eligible for
a restricted rental unit when the household is a very low-income,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
1.
The household currently pays more than 35% (40% for households eligible
for age-restricted units) of its gross household income for rent,
and the proposed rent will reduce its housing costs;
2.
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
3.
The household is currently in substandard or overcrowded living conditions;
4.
The household documents the existence of assets with which the household
proposes to supplement the rent payments; or
5.
The household documents proposed third-party assistance from an outside
source such as a family member in a form acceptable to the Administrative
Agent and the owner of the unit.
c.
The applicant shall file documentation sufficient to establish the
existence of the circumstances in paragraphs b1 through b5 above with
the Administrative Agent, who shall counsel the household on budgeting.
[Amended 9-21-2023 by Ord. No. 23-31]
a.
Each housing unit created through the duly approved conversion of
a nonresidential structure shall be considered a new housing unit
and shall be subject to the affordability controls for a new housing
unit.
[Amended 9-21-2023 by Ord. No. 23-31]
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:
1.
Affirmative marketing (N.J.A.C. 5:80-26.15); provided, however, that
the units or bedrooms may be affirmatively marketed by the provider
in accordance with an alternative plan approved by the Court or other
relevant authority;
2.
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
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.
[Ord. No. 10-16 § 15;
amended 9-21-2023 by Ord. No. 23-31]
a.
The position of Municipal Housing Liaison (MHL) for the Borough of
Elmwood Park is established by this section. The Borough Committee
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 the Borough
of Elmwood Park.
2.
The person appointed as the MHL must be reported to the Superior
Court or other relevant authority for approval.
3.
The MHL must meet all COAH requirements for qualifications, including
initial and periodic training.
4.
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of Elmwood Park, including the following responsibilities which may
not be contracted out to the Administrative Agent:
(a)
Serving as the municipality's primary point of contact
for all inquiries from the State, affordable housing providers, Administrative
Agents and interested households;
(b)
The implementation of the Affirmative Marketing Plan and affordability
controls;
(c)
When applicable, supervising any contracting Administrative
Agent;
(d)
Monitoring the status of all restricted units in the Borough
of Elmwood Park's Fair Share Plan;
(e)
Compiling, verifying and submitting annual reports as required
by the Superior Court or other relevant authority;
(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 COAH, the Superior Court, or other relevant authority.
(h)
Ensuring that the persons or entities conducting affirmative
marketing of any affordable housing units in the Borough are notifying
the entities at Paragraph 7.8 of the Settlement Agreement with Fair
Share Housing Center of all available affordable housing units, as
required by that same paragraph.
b.
The Borough of Elmwood Park shall designate by resolution of the
Borough Council, subject to the approval of the Superior Court, one
or more Administrative Agents to administer newly constructed affordable
units in accordance with N.J.A.C. 5:91, N.J.A.C. 5:93 and UHAC.
c.
An Operating Manual shall be provided by the Administrative Agent(s)
to be adopted by resolution of the Governing Body and subject to approval
of the Superior Court or other relevant authority. The Operating Manuals
shall be available for public inspection in the Office of the Municipal
Clerk and in the office(s) of the Administrative Agent(s).
d.
The Administrative Agent shall perform the duties and responsibilities
of an administrative agent as are set forth in UHAC and which are
described in full detail in the Operating Manual, including those
set forth in N.J.A.C. 5:80-26.14, 16 and 18 thereof, which includes:
1.
Attending continuing education opportunities on affordability controls,
compliance monitoring, and affirmative marketing as offered or approved
by COAH, the Superior Court, or other relevant authority;
2.
Affirmative Marketing;
(a)
Conducting an outreach process to ensure affirmative marketing
of affordable housing units in accordance with the affirmative marketing
plan of Verona and the provisions of N.J.A.C. 5:80-26.15.
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.
3.
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 very-low, low-, or moderate-income unit;
(c)
Providing written notification to each applicant as to the determination
of eligibility or non-eligibility;
(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;
and
(f)
Employing the random selection process as provided in the affirmative
marketing plan of Verona when referring households for certification
to affordable units.
(g)
Notifying the following entities of the availability of affordable
housing units in the Borough of Elmwood Park: the Fair Share Housing
Center, the New Jersey State Conference of the NAACP, the Latino Action
Network, the Bergen County NAACP, the Urban League of Bergen County,
and the Supportive Housing Association.
4.
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 appropriate
county's register of deeds or County Clerk's office after
the termination of the affordability controls for each restricted
unit;
(d)
Communicating with lenders regarding foreclosures; and
Ensuring the issuance of continuing certificates of occupancy
or certificates pursuant to N.J.A.C. 5:80-26.10.
5.
Records retention;
6.
Resale and rerental;
(a)
Instituting and maintaining an effective means of communicating
information between owners and the administrative agent regarding
the availability of restricted units for resale or rental; and
(b)
Instituting and maintaining an effective means of communicating
information to very-low, low-, and moderate-income households regarding
the availability of restricted units for resale or re-rental.
7.
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 so 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;
8.
Enforcement, though the ultimate responsibility for retaining controls
on the units rests with the municipality.
(a)
Ensure that all restricted units are identified as affordable
within the Tax Assessor's office and any municipal utility authority
(MUA) and upon notification to the administrative agent of change
in billing address, payment delinquency of two consecutive billing
cycles, transfer of title, or institution of a writ of foreclosure
on all affordable units, 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 acknowledgment 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;
(c)
The posting annually in all rental properties, including two-family
homes, of a notice as to the maximum permitted rent together with
the telephone number of the administrative agent where complaints
of excess rent 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 municipality's affordable housing trust fund or other
appropriate municipal fund approved by the DCA;
(f)
Establishing a rent-to-equity program;
(g)
Establishing a program for diverting unlawful rent payments
to the municipality's affordable housing trust fund;
(h)
Creating and publishing a written operating manual, as approved
by the Borough Committee and COAH, its successor agency, or Court
of competent jurisdiction, setting forth procedures for administering
such affordability controls; and
(i)
Providing annual reports to COAH, its successor agency, or Court
of competent jurisdiction as required.
9.
The Administrative Agent shall have authority to take all actions
necessary and appropriate to carry out its responsibilities, hereunder.
[Ord. No. 10-16 § 16;
amended 9-21-2023 by Ord. No. 23-31]
a.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, municipal fines, a requirement
for household recertification, acceleration of all sums due under
a mortgage, recoupment of any funds from a sale in the violation of
the regulations, injunctive relief to prevent further violation of
the regulations, entry on the premises, and specific performance.
b.
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
1.
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation, or violations, of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
found by the court to have violated any provision of the regulations
governing affordable housing units the owner, developer or tenant
shall be subject to one or more of the following penalties, at the
discretion of the court:
(a)
A fine of not more than the penalty provided for in Chapter 1, Section 1-5, or imprisonment for a period not to exceed 90 days, or both. Each and every day that the violation continues or exists shall be considered a separate and specific violation of these provisions and not as a continuing offense;
(b)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Borough of Elmwood Park Affordable Housing
Trust Fund of the gross amount of rent illegally collected;
(c)
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation
costs, as determined by the court.
2.
The municipality may file a court action in the Superior Court seeking
a judgment, which would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any judgment shall be enforceable as if the same were
a judgment of default of the First Purchase Money Mortgage and shall
constitute a lien against the low- and moderate-income unit.
c.
Such judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the low-
and moderate-income unit of the violating owner shall be sold at a
sale price which is not less than the amount necessary to fully satisfy
and pay off any First Purchase Money Mortgage and prior liens and
the costs of the enforcement proceedings incurred by the municipality,
including 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.
d.
The proceeds of the Sheriffs sale shall first be applied to satisfy
the First Purchase Money Mortgage lien and any prior liens upon the
low- and moderate-income unit. The excess, if any, shall be applied
to reimburse the municipality for any and all costs and expenses incurred
in connection with either the court action resulting in the judgment
of violation or the Sheriffs sale. In the event that the proceeds
from the Sheriffs sale are insufficient to reimburse the municipality
in full as aforesaid, the violating owner shall be personally responsible
for and to the extent of such deficiency, in addition to any and all
costs incurred by the municipality in connection with collecting such
deficiency. In the event that a surplus remains after satisfying all
of the above, such surplus, if any, shall be placed in escrow by the
municipality for the owner and shall be held in such escrow for a
maximum period of two years or until such earlier time as the owner
shall make a claim with the municipality for such. Failure of the
owner to claim such balance within the two-year period shall automatically
result in a forfeiture of such balance to the municipality. Any interest
accrued or earned on such balance while being held in escrow shall
belong to and shall be paid to the municipality, whether such balance
shall be paid to the owner or forfeited to the municipality.
e.
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the Sheriffs 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 Sheriffs sale shall not be entitled to any right of redemption.
f.
If there are no bidders at the Sheriffs sale, or if insufficient
amounts are bid to satisfy the First Purchase Money Mortgage and any
prior liens, the municipality may acquire title to the low- and moderate-income
unit by satisfying the First Purchase Money Mortgage and any prior
liens and crediting the violating owner with an amount equal to the
difference between the First Purchase Money Mortgage and any prior
liens and costs of the enforcement proceedings, including legal fees
and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
g.
Failure of the low- and moderate-income unit to be either sold at
the Sheriffs sale or acquired by the municipality shall obligate the
owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
h.
The owner shall remain fully obligated, responsible and liable for
complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
[Ord. No. 10-16 § 17;
amended 9-21-2023 by Ord. No. 23-31]
Appeals from all decisions of an Administrative Agent designated
pursuant to this section shall be filed in writing with the Borough
Clerk of the Borough of Elmwood Park.
[Added 9-21-2023 by Ord. No. 23-30]
[Added 9-21-2023 by Ord. No. 23-30]
This section establishes standards for the collection, maintenance,
and expenditure of development fees that are consistent with COAH's
regulations developed in response to P.L. 2008, c. 46, Sections 8
and 32-38 (N.J.S.A. 52:27D-329.2), the Statewide Non-Residential Development
Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), and the Borough's
2018 Settlement Agreement with Fair Share Housing Center (BER-L-6375-15).
Fees collected pursuant to this section shall be used for the purpose
of providing very-low, low- and moderate-income housing in accordance
with a Court-approved spending plan.
[Added 9-21-2023 by Ord. No. 23-30]
[Added 9-21-2023 by Ord. No. 23-30]
The following terms when used in this section shall have the
meaning given in this subsection.
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipally sponsored construction project or a 100% affordable
housing development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act, or any successor agency charged with the
administration of the Act.
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 authorized by Holmdel Builder's Association v. Holmdel Borough,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27d-301,
et seq., and regulated by applicable COAH Rules.
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 c).
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.
[Added 9-21-2023 by Ord. No. 23-30]
a.
Imposed Fees.
1.
Within all districts, 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 is permitted pursuant to
a "d" variance granted under N.J.S.A. 40:55D-70d(5), developers shall
be required to pay a "bonus" development fee of 6% of the equalized
assessed value for each additional unit that may be realized, except
that this provision shall not be applicable to a development that
will include affordable housing. 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 could equal 1.5% of the equalized
assessed value on the first two units; and 6% of the equalized assessed
value for the two additional units, provided zoning on the site has
not changed during the two-year period preceding the filing of such
a variance application.
b.
Eligible extractions, including extractions for residential developments.
1.
Affordable housing developments and/or developments where the developer
has made a payment in lieu of on-site construction of affordable units,
if permitted by ordinance or by agreement with the Borough of Elmwood
Park, shall be exempt from the payment of development fees.
2.
Developments that have received preliminary or final site plan approval
prior to the adoption of the Borough's initial development fee
ordinance shall be exempt from the payment of development fees, unless
the developer seeks a substantial change in the original approval.
Where 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.
Owner-occupied residential structures demolished and replaced as
a result of a fire, flood, or natural disaster shall be exempt from
paying a development fee.
4.
Development fees shall be imposed and collected when there is an
addition to an existing structure, or when an existing structure undergoes
a change to a more intense use or is demolished and replaced. The
development fee shall be calculated on the increase in the equalized
assessed value of the improved structure.
5.
No fee shall be charged pursuant to this section for any addition
or improvement to an existing residential structure, so long as such
addition or improvement does not increase the equalized assessed value
of the existing structure, as of the date thereof, by more than 50%.
6.
Not-for-profit developers shall be exempt.
[Added 9-21-2023 by Ord. No. 23-30]
a.
Imposed Fees.
1.
Within all zoning districts, nonresidential developers, except for
developers of the types of development specifically exempted, shall
pay a fee equal to 2.5% of the equalized assessed value of the land
and improvements, for all new nonresidential construction on an unimproved
lot or lots.
2.
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to 2.5%
of the increase in equalized assessed value resulting from any additions
to existing structures to be used for nonresidential purposes.
3.
Development fees shall be imposed and collected when an existing
structure is demolished and replaced. The development fee of 2.5%
shall be calculated on the difference between the equalized assessed
value of the preexisting land and improvement and the equalized assessed
value of the newly improved structure, i.e. land and improvement,
at the time final certificate of occupancy is issued. If the calculation
required under this section results in a negative number, the nonresidential
development fee shall be zero.
b.
Eligible exactions, ineligible exactions and exemptions for nonresidential
development.
1.
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the 2.5% development fee, unless
otherwise exempted below.
2.
The 2.5% fee shall not apply to an increase in equalized assessed
value resulting from alterations, change in use within existing footprint,
reconstruction, renovations and repairs.
3.
Nonresidential developments shall be exempt from the payment of nonresidential
development fees in accordance with the exemptions required pursuant
to the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1
through 8.7), as specified in Form N-RDF "State of New Jersey Non-Residential
Development Certification/Exemption." 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 the Statewide Non-Residential Development
Fee Act shall be subject to the fee at such time as 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 for the nonresidential development, whichever is later.
5.
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Borough of Elmwood Park as a lien against
the real property of the owner.
[Added 9-21-2023 by Ord. No. 23-30]
a.
Upon the granting of a preliminary, final or other applicable approval
for a development, the applicable approving authority or entity shall
notify or 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 Non-Residential
Development Certification/Exemption" to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The construction official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in the Form N-RDF. The tax assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
c.
The construction official responsible for the issuance of a building
permit shall notify the local tax assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
d.
Within 90 days of receipt of that notice, the municipal tax assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
e.
The construction official responsible for the issuance of a final
certificate of occupancy 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 Borough of Elmwood Park 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 time of 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 the issuance
of the certificate of occupancy. No certificate of occupancy shall
be issued to the developer until all remaining developer fees have
been paid in full.
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 Millburn Township. 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 Elmwood Park Borough.
Appeals from a determination of the Director may be made to the tax
court in accordance with the provisions of the State Tax Uniform Procedure
Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such
determination. Interest earned on amounts escrowed shall be credited
to the prevailing party.
[Added 9-21-2023 by Ord. No. 23-30]
a.
There is hereby created a separate, interest-bearing Housing Trust
Fund to be maintained by the Chief Financial Officer for the purpose
of depositing development fees collected from residential and nonresidential
developers and proceeds from the sale of units with extinguished controls.
b.
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 collected in accordance with Subsection 37-1.4e;
2.
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached dwelling unit development
accessible;
3.
Rental income from municipally operated units;
4.
Repayments from affordable housing program loans;
5.
Recaptured funds;
6.
Proceeds from the sale of affordable units; and
7.
Any other funds collected in connection with the Borough of Elmwood
Park's affordable housing program.
c.
In the event of a failure by the Borough of Elmwood Park 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) (affd 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 Borough of Elmwood Park, or, if not practicable,
then within the County.
1.
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.
d.
All interest accrued in the Affordable Housing Trust Fund shall only
be used to fund eligible affordable housing activities approved by
the Court.
[Added 9-21-2023 by Ord. No. 23-30]
a.
The expenditure of all funds shall conform to a spending plan approved
by the Superior Court. Funds deposited in the Affordable Housing Trust
Fund may be used for any activity approved by the Court to address
Elmwood Park Borough's fair share obligation and may be set up
as a grant or revolving loan program. Such activities include, but
are not limited to, preservation or purchase of housing for the purpose
of maintaining or implementing affordability controls; housing rehabilitation;
new construction of affordable housing units and related costs; accessory
apartments; a market to affordable program; regional housing partnership
programs; conversion of existing nonresidential buildings to create
new affordable units; green building strategies designed to be cost
saving and in accordance with accepted national or state standards;
purchase of land for affordable housing; improvement of land to be
used for affordable housing; extensions or improvements of roads and
infrastructure to affordable housing sites; financial assistance designed
to increase affordability; administration necessary for implementation
of the Housing Element and Fair Share Plan; and/or any other activity
permitted by the Court and specified in the approved spending plan.
b.
Funds shall not be expended to reimburse Elmwood Park Borough for
past housing activities.
c.
At least 30% of all development fees collected and interest earned
on such fees shall be used to provide affordability assistance to
very low-, 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 the median income for Housing Region 1, in which Elmwood Park
is located.
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. The specific
programs to be used for affordability assistance shall be identified
and described within the spending plan.
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. The specific programs
to be used for very-low-income affordability assistance shall be identified
and described within the spending plan.
3.
Payments in lieu of constructing affordable housing units on site
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
d.
Elmwood Park Borough may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including its programs for affordability assistance.
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 consultants'
fees necessary to develop or implement a new construction program,
prepare a Housing Element and Fair Share Plan, and/or administer an
affirmative marketing program or a rehabilitation program.
1.
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.
2.
Administrative funds may be used for income qualification of households,
monitoring the turnover of sale and rental units, and compliance with
the monitoring requirements. Legal or other fees related to litigation
opposing affordable housing sites or related to securing or appealing
a judgment from the Court are not eligible uses of the Affordable
Housing Trust Fund.
[Added 9-21-2023 by Ord. No. 23-30]
a.
The Borough of Elmwood Park shall provide annual reporting of Affordable
Housing Trust Fund activity to the New Jersey Department of Community
Affairs, COAH or Local Government Services or other entity designated
by the State of New Jersey, and Fair Share Housing Center, as well
as posting it to the municipal website, using forms developed for
this purpose by the New Jersey Department of Community Affairs, COAH
or Local Government Services, or any other forms endorsed by the Special
Master and Fair Share Housing Center.
[Added 9-21-2023 by Ord. No. 23-30]
a.
The ability of Elmwood Park Borough to impose, collect and expend
development fees shall be permitted through the expiration of the
repose period covered by its judgment of compliance and shall continue
thereafter so long as Elmwood Park Borough has filed an adopted Housing
Element and Fair Share Plan with the Court or with a designated state
administrative agency, has petitioned for a judgment of compliance
from the Court or for substantive certification or its equivalent
from a state administrative agency authorized to approve and administer
municipal affordable housing compliance and has received approval
of its development fee ordinance from the entity that will be reviewing
and approving the Housing Element and Fair Share Plan.
b.
If the Borough of Elmwood Park fails to renew its ability to impose
and collect development fees after the expiration of its judgment
of compliance and repose, it may be subject to forfeiture of any or
all funds remaining within its Affordable Housing Trust Fund. Any
funds so forfeited shall be deposited into the "New Jersey Affordable
Housing Trust Fund" established pursuant to Section 20 of P.L. 1985,
c. 222 (N.J.S.A. 52:27D-320).
c.
After the expiration of the judgment of compliance and repose, if
the Borough does not pursue or obtain continued authorization, Elmwood
Park Borough shall not impose a residential development fee on a development
that receives preliminary or final site plan approval, retroactively
impose a development fee on such a development, or expend any of its
collected development fees.
