[Amended 7-11-2024 by Ord. No. 2024-8[1]]
A.
Affordable housing obligation.
(1)
This article sets forth regulations regarding the low- and moderate-income housing units in the Borough of Fort Lee consistent with the provisions known as the "Substantive Rules of the New Jersey Council on Affordable Housing," the Uniform Housing Affordability Controls ("UHAC"), N.J.A.C. 5:80-26.1 et seq., and the Borough's constitutional obligation to provide a fair share of affordable housing for low- and moderate-income households. In addition, this article applies requirements for very-low-income housing established in P.L. 2008, c. 46 (the "Roberts Bill").
(2)
This article 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 article shall apply except where inconsistent with applicable law.
(3)
The Borough of Fort Lee 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 Fair Share Plan has been endorsed by the governing body. The Fair Share Plan describes the ways the Borough of Fort Lee shall address its fair share for low- and moderate-income housing as determined by the Superior Court and documented in the Housing Element.
(4)
This article implements and incorporates the Fair Share Plan and addresses the requirements of the Act and regulations thereunder, as may be amended and supplemented.
(5)
The Borough shall file monitoring reports with the Superior Court and place the reports on its municipal website.
B.
Monitoring and reporting requirements. The Borough of Fort Lee shall comply with the following monitoring and reporting requirements regarding the status of the implementation of its Court-approved Housing Element and Fair Share Plan:
(1)
Beginning on April 21, 2024, and on every anniversary of that date through July 1, 2025, the Borough agrees to provide annual reporting of its Affordable Housing Trust Fund to the New Jersey Department of Community Affairs (NJDCA), Council on Affordable Housing (COAH), or Local Government Services (LGS), or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center (FSHC) and posted on the municipal website, using forms developed for this purpose by NJDCA, COAH, or LGS. The reporting shall include an accounting of all Affordable Housing Trust Fund activity, including the source and amounts of funds collected, and the amount and purpose for which any funds have been expended.
(2)
On the first anniversary of the "Judgment of Compliance and Repose," or "the judicial equivalent of substantive certification," and every anniversary of that date through the end of this repose period, the Borough agrees to provide annual reporting of the status of all affordable housing activity within the municipality through posting on the municipal website with a copy of such posting provided to Fair Share Housing Center, using forms previously developed for this purpose by COAH or any other forms endorsed by the Special Master and FSHC.
(3)
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 "Judgment of Compliance and Repose" or "the judicial equivalent of substantive certification", and every third year thereafter, the Borough will post on its municipal website, with a copy 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.
C. ACCESSORY APARTMENT ACT ADAPTABLE ADMINISTRATIVE AGENT AFFIRMATIVE MARKETING AFFORDABILITY AVERAGE AFFORDABLE AFFORDABLE HOUSING DEVELOPMENT AFFORDABLE HOUSING PROGRAM(S) AFFORDABLE UNIT AGE-RESTRICTED UNIT AGENCY ALTERNATIVE LIVING ARRANGEMENT ASSISTED LIVING RESIDENCE BOROUGH CERTIFIED HOUSEHOLD COAH OR COUNCIL COMMISSIONER CONSTRUCTION DCA DEFICIENT HOUSING UNIT DEVELOPER DEVELOPMENT DEVELOPMENT FEE EQUALIZED ASSESSED VALUE FAIR SHARE PLAN FHA GREEN BUILDING STRATEGIES HOUSING PLAN ELEMENT INCLUSIONARY DEVELOPMENT INCOME LOW-INCOME HOUSEHOLD LOW-INCOME UNIT MAJOR SYSTEM MARKET-RATE UNITS MEDIAN INCOME MIXED-USE DEVELOPMENT MODERATE-INCOME HOUSEHOLD MODERATE-INCOME UNIT NONEXEMPT SALE NONRESIDENTIAL DEVELOPMENT(1) (2) (3) NONRESIDENTIAL DEVELOPMENT FEE RANDOM SELECTION PROCESS RECREATIONAL FACILITIES AND COMMUNITY CENTER REGIONAL ASSET LIMIT REHABILITATION RENT RESTRICTED UNIT SPECIAL MASTER SPENDING PLAN TREASURER UHAC VERY-LOW-INCOME HOUSEHOLD VERY-LOW-INCOME UNIT WEATHERIZATION
Definitions. The following terms, when used in this article, 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 designated by the Borough responsible for the administration of affordable units in accordance with this article, 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 very low-, low- and moderate-income households.
A sales price or rent level within the means of a very low-, low- or moderate income household as defined within N.J.A.C. 5:93-7.4 and, in the case of an ownership unit, that the sales price for the unit conforms to the standards set forth in N.J.A.C. 5:80-26.6, as may be amended and supplemented, and, in the case of a rental unit, that the rent for the unit conforms to the standards set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A development included in and approved pursuant to the Housing Element and Fair Share Plan or otherwise intended to address the Borough's fair share obligation, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100% affordable housing development.
Any mechanism in a municipal Fair Share Plan prepared or implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act and approved for crediting by the Court, and/or funded through an affordable housing trust fund.
A housing unit designed to meet the needs of, and exclusively for, the residents of an age-restricted segment of the population such that: 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; 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. "Alternate living arrangements" include, but is 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; 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.
The Borough of Fort Lee, Bergen County, New Jersey.
A household that has been certified by an administrative agent as a very low-income, low-income household or moderate-income household.
The Council on Affordable Housing that was established under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
The Commissioner of Community Affairs.
New construction and additions, but does not include alterations, reconstruction, renovations, and repairs as those terms are defined under the State Uniform Construction Code promulgated pursuant to the State Uniform Construction Code Act, P.L. 1975, c. 217 (N.J.S.A. 52:27D-119 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 included in a proposed development, including the holder of an option to contract to purchase, or other person having an enforceable proprietary interest in such land.
The division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any use or change in the use of any building or other structure, or of any mining, excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to N.J.S.A. 40:55D-1 et seq.
Money paid by a developer for the improvement of property as authorized by Holmdel Builder's Association v. Holmdel Township, 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 54:1-35c).
The plan that described the mechanisms and the funding sources, if applicable, by which a municipality proposes to addresses 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.
The New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 et seq.
Those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.
The portion of the Borough's Master Plan required by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-28b(3) and other legislation.
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.
Revenue and receipts, actual or fairly imputed, from all sources, including but not limited to wages, interest, dividends, social security, pensions, government benefits, alimony, child support and rents from income property.
A household with a total gross annual household income equal to 50% or less of the regional median household income by household size.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical, fire protection, or occupant service components of a building, which include, but are not limited to, weatherization, roofing, plumbing (including wells), heating, electricity, sanitary plumbing (including septic systems), lead paint abatement or load-bearing structural systems.
Housing not restricted to very low-, 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 New Jersey Superior Court.
Any development which includes both a nonresidential development component and a residential development component, and shall include developments for which: 1) there is a common developer for both the residential development component and the nonresidential development component, provided that for purposes of this definition, multiple persons and entities may be considered a common developer if there is a contractual relationship among them obligating each entity to develop at least a portion of the residential or nonresidential development, or both, or otherwise to contribute resources to the development; and 2) the residential and nonresidential developments are located on the same lot or adjoining lots, including but not limited to lots separated by a street, a river, or another geographical feature.
A household with a total gross annual household income in excess of 50% but less than 80% of the regional median household income by household size.
A restricted unit that is affordable to a moderate-income household.
Any sale or transfer of ownership other than the transfer of ownership between husband and wife; the transfer of ownership between former spouses ordered as a result of a judicial decree of divorce or judicial separation, but not including sales to third parties; the transfer of ownership between family members as a result of inheritance; the transfer of ownership through an executor's deed to a Class A beneficiary; and the transfer of ownership by court order.
Any building or structure, or portion thereof, including but not limited to any appurtenant improvements, which is designated to a use group other than a residential use group according to the State Uniform Construction Code promulgated to effectuate the State Uniform Construction Code Act, P.L. 1975, c. 217 (N.J.S.A. 52:27D-119 et seq.), including any subsequent amendments or revisions thereto;
Hotels, motels, vacation timeshares, and child-care facilities; and
The entirety of all continuing care facilities within a continuing care retirement community which is subject to the Continuing Care Retirement Community Regulation and Financial Disclosure Act, P.L. 1986, c. 103 (N.J.S.A. 52:27D-330 et seq.).
The fee authorized to be imposed pursuant to Sections 32 through 38 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.1 through 40:55D-8.7).
A process by which currently income-eligible households are selected for placement in affordable housing units such that no preference is given to one applicant over another except for purposes of matching household income and size with an appropriately priced and sized affordable unit (e.g., by lottery).
Any indoor or outdoor buildings, spaces, structures, or improvements intended for active or passive recreation, including but not limited to ball fields, meeting halls, and classrooms, accommodating either organized or informal activity; and "senior center" means any recreational facility or community center with activities and services oriented towards serving senior citizens.
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 UHORP or MONI.
An expert appointed by a judge to make sure that judicial orders are followed. A master's function is essentially investigative, compiling evidence or documents to inform some future action by the court.
A method of allocating funds collected and to be collected pursuant to an approved municipal development fee ordinance, or pursuant to P.L. 2008, c. 46 (N.J.S.A. 52:27D-329.1 et seq.) for the purpose of meeting the housing needs of low- and moderate-income individuals.
The Treasurer of the State of New Jersey.
The Uniform Housing Affordability Controls set forth in N.J.A.C. 5:80-26, et seq.
A household with a total gross annual household income equal to 30% or less of the regional median household income by household size.
A restricted unit that is affordable to a very-low-income household.
Building insulation (for attic, exterior walls and crawl space), siding to improve energy efficiency, replacement storm windows, replacement storm doors, replacement windows and replacement doors, and is considered a major system for purposes of a rehabilitation program.
D.
Applicability.
(1)
The provisions of this article shall apply to all affordable housing developments and affordable housing units that currently exist and that are proposed to be created within the Borough of Fort Lee pursuant to the Borough's most recently adopted Housing Element and Fair Share Plan.
(2)
Moreover, this article shall apply to all developments that contain very low-, low- and moderate-income housing units, including any currently unanticipated future developments that will provide very low-, low-, and moderate-income housing units and including any developments funded with low-income housing tax credits.
E.
Borough-wide mandatory set-aside.
(1)
Any future multifamily development of five or more new housing units in the Borough developed through municipal rezoning; Planning Board approval, Zoning Board approval, redevelopment or rehabilitation plan is required to include an affordable housing set aside of at least 10% of all units.
(2)
For all affordable units:
(a)
At least 50% of the units in each development shall be affordable to low-income and very low-income households including 13% in rental developments affordable to very low-income households.
(b)
The required bedroom distribution shall be governed by controls on affordability and affirmatively marketed in conformance with the Uniform Housing Affordability Controls ("UHAC"), N.J.A.C. 5:80-26.1 et seq. or any successor regulation, and all other applicable law.
(c)
Fractional obligations may be satisfied by payments-in-lieu contributions or by rounding up for fractions of .5 units or more, at the sole discretion of the Borough; and
(d)
Other than such fractional obligations, affordable housing obligations must only be satisfied by on-site construction or off-site units, either of which shall be provided in concert with the market rate units being developed in accordance with the phasing schedule provided for in N.J.A.C. 5:93-5.6(d).
(3)
Off-site units. At the Borough's sole discretion, a developer may arrange to provide some or all required affordable units at a different site than the market-rate units. In such instances, the developer shall be subject to the following provisions:
(a)
All provisions governing the provision of affordable units off-site shall be set forth in a developer's agreement.
(b)
The calculation of the required affordable housing set-aside shall be done based on the total of all market-rate units being provided on-site plus the required affordable units being provided off-site.
(c)
The affordable units must be provided according to the phasing schedule above.
(d)
Payments-in-lieu of construction. No developer may make a payment in lieu of constructing affordable units, except for fractional units as provided for above.
(4)
Developers shall not subdivide a project for the purpose of avoiding compliance with this requirement.
(5)
This requirement does not give any developer the right to any such rezoning, variance or other relief, or establish any obligation on the part of Fort Lee Borough to grant such rezoning, variance or other relief. No subdivision shall be permitted or approved for the purpose of avoiding compliance with this requirement.
F.
Alternative living arrangements.
(1)
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:
(2)
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.
(3)
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.
G.
Phasing schedule for inclusionary housing projects.
(1)
The following general guidelines apply to all newly constructed inclusionary housing developments. Final site plan or subdivision approval shall be contingent upon the inclusionary development meeting the following phasing schedule for very low-, low- and moderate-income units.
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% |
H.
New construction.
(1)
Design.
(a)
In inclusionary developments, to the extent possible, very low-, low- and moderate-income units shall be integrated with the market units, and not situated so as to be concentrated in separate building(s) or in separate area(s) or floor(s) from the market-rate units. In inclusionary developments that are greater than three floors, no more than 50% of any floor's units shall be very low-, low- and moderate-income units, and there should not be a concentration of certain income levels or bedroom sizes on certain floors. In buildings with multiple dwelling units, this shall mean that the affordable units shall be generally distributed within each building with market-rate units.
(b)
In inclusionary developments, the residents of very low-, low- and moderate-income units shall have full and equal access to all of the same entryways, amenities, common areas, and recreation as the market units. Any amenities included in the rent for market rate units shall also be included in the rent for affordable units, any amenities that have an optional fee for market rate units may also have the same optional fee for affordable units.
(2)
Low/moderate split and bedroom distribution of affordable housing units.
(a)
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 deemed a low-income unit. At least 13% of all restricted rental units within each bedroom distribution shall be very low-income units (affordable to a household earning 30% or less of regional median income by household size). The very low-income units shall be counted as part of the required number of low-income units within the development.
(b)
In each affordable development, at least 50% of the restricted units within each bedroom distribution shall be very low- or low-income units.
(c)
Affordable developments that are not age-restricted shall be structured in conjunction with realistic market demands such that:
[1]
The combined number of efficiency and one-bedroom units shall be no greater than 20% of the total low- and moderate-income units;
[2]
At least 30% of all low- and moderate-income units shall be two-bedroom units;
[3]
At least 20% of all low- and moderate-income units shall be three-bedroom units; and
[4]
The remaining units may be allocated among two- and three-bedroom units at the discretion of the developer.
(d)
Affordable developments that are age-restricted shall be structured such that the number of bedrooms shall equal the number of age-restricted low- and moderate-income units within the inclusionary development. This standard may be met by having all one-bedroom units or by having a two-bedroom unit for each efficiency unit.
(3)
Accessibility requirements.
(a)
The first floor of all restricted townhouse dwelling units and all restricted units in all other multistory buildings shall be subject to the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7 and the following:
(b)
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:
[1]
An adaptable toilet and bathing facility on the first floor; and
[2]
An adaptable kitchen on the first floor; and
[3]
An interior accessible route of travel on the first floor; and
[4]
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
[5]
If not all of the foregoing requirements in b(1) through b(4) can be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the terms of paragraphs b(1) through b(4) above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit; and
[6]
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 Fort Lee has collected funds from the developer sufficient to make 10% of the adaptable entrances in the development accessible:
[a]
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.
[b]
To this end, the builder of restricted units shall deposit funds within the Borough of Fort Lee's Affordable Housing Trust Fund sufficient to install accessible entrances in 10% of the affordable units that have been constructed with adaptable entrances.
[c]
The funds deposited under Subsection [6][b] above shall be used by the Borough of Fort Lee for the sole purpose of making the adaptable entrance of an affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[d]
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 Fort Lee.
[e]
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 Fort Lee's Affordable Housing Trust Fund in care of the Municipal Chief Financial Officer/Treasurer, who shall ensure that the funds are deposited into the Affordable Housing Trust Fund and appropriately earmarked for use in accordance with the provisions of this subsection.
[7]
Full compliance with the foregoing provisions shall not be required where an entity can demonstrate that it is "site impracticable" to meet the requirements. Determinations of site impracticability shall be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
(4)
Maximum rents and sales prices.
(a)
In establishing rents and sales prices of affordable housing units, the Administrative Agent shall follow the procedures set forth in UHAC, utilizing the most recently published regional weighted average of the uncapped Section 8 income limits published by HUD and the calculation procedures as approved by the Court.
(b)
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.
(c)
The developers and/or municipal sponsors of restricted rental units shall establish at least one rent for each bedroom type for both low-income and moderate-income units, provided that at least 13% of all low- and moderate-income rental units shall be affordable to very low-income households earning no more than 30% of median income. Very low-income units shall be part of the low-income requirement.
(d)
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.
(e)
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:
[1]
A studio shall be affordable to a one-person household;
[2]
A one-bedroom unit shall be affordable to a 1 1/2 person household;
[3]
A two-bedroom unit shall be affordable to a three-person household;
[4]
A three-bedroom unit shall be affordable to a 4 1/2 person household; and
[5]
A four-bedroom unit shall be affordable to a six-person household.
(f)
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:
(g)
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.
(h)
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.
(i)
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.
(j)
The rents of very low-, low- and moderate-income units may be increased annually based on the permitted percentage increase in the Housing Consumer Price Index for the Northeast Urban Area. This increase shall not exceed 9% in any one year. Rent increases for units constructed pursuant to low-income housing tax credit regulations shall be indexed pursuant to the regulations governing low-income housing tax credits.
I.
Utilities.
(1)
Affordable units shall utilize the same type of heating source as market units within an inclusionary development.
(2)
In affordable units, tenant-paid utilities included in the utility allowance shall be set forth in the lease and shall be consistent with the utility allowance approved by HUD for the Section 8 program.
J.
Occupancy standards.
(1)
In referring certified households to specific restricted units, the Administrative Agent shall, to the extent feasible and without causing an undue delay in the occupancy of a unit, strive to:
K.
Control periods for restricted ownership units and enforcement mechanisms.
(1)
Control periods for restricted ownership units shall be in accordance with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each restricted ownership unit shall remain subject to the requirements of this section for a period of at least 30 years, until the Borough of Fort Lee takes action to release the unit from such requirements; prior to such action, a restricted ownership unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
(2)
The affordability control period for a restricted ownership unit shall commence on the date the initial certified household takes title to the unit.
(3)
Prior to the issuance of the initial certificate of occupancy for a restricted ownership unit and upon each successive sale during the period of restricted ownership, the Administrative Agent shall determine the restricted price for the unit and shall also determine the nonrestricted, fair market value of the unit based on either an appraisal or the unit's equalized assessed value without restrictions in place.
(4)
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 as set forth in this article, an amount equal to the difference between the unit's nonrestricted fair market value and its restricted price, and the recapture note shall be secured by a recapture lien evidenced by a duly recorded mortgage on the unit.
(5)
The affordability controls set forth in this article shall remain in effect despite the entry and enforcement of any judgment of foreclosure with respect to restricted ownership units.
(6)
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 removal of the restrictions provided under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
L.
Price restrictions for restricted ownership units, homeowners' association fees and resale prices. 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 master deeds of inclusionary developments shall provide no distinction between the condominium or homeowner association fees and special assessments paid by low- and moderate-income purchasers and those paid by market purchasers.
(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 anticipated capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household or the addition of a bathroom.
M.
Buyer income eligibility.
(1)
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 very low-income ownership units shall be reserved for households with a gross household income less than or equal to 30% of median income, 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.
(2)
Notwithstanding the foregoing, the Administrative Agent may, upon approval by the Mayor and Council, and subject to the Court's approval, permit a moderate-income purchaser to buy a low-income unit if and only if the Administrative Agent can demonstrate that there is an insufficient number of eligible low-income purchasers in the housing region to permit prompt occupancy of the unit and all other reasonable efforts to attract a low-income purchaser, including pricing and financing incentives, have failed. Any such low-income unit that is sold to a moderate-income household shall retain the required pricing and pricing restrictions for a low-income unit.
(3)
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.
(4)
The Administrative Agent shall certify a household as eligible for a restricted ownership unit when the household is a very low-income household, low-income household or a moderate-income household, as applicable to the unit, and the 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, eligible monthly income.
N.
Limitations on indebtedness secured by ownership unit; subordination.
(1)
Prior to incurring any indebtedness to be secured by a restricted ownership unit, the owner shall apply to the Administrative Agent for a determination in writing that the proposed indebtedness complies with the provisions of this section, and the Administrative Agent shall issue such determination prior to the owner incurring such indebtedness.
(2)
With the exception of original purchase money mortgages, neither an owner nor a lender shall at any time cause or permit the total indebtedness secured by a restricted ownership unit to exceed 95% of the maximum allowable resale price of that unit, as such price is determined by the administrative agent in accordance with N.J.A.C. 5:80-26.6(b).
O.
Capital improvements to ownership units.
(1)
The owners of restricted ownership units may apply to the Administrative Agent to increase the maximum sales price for the unit on the basis of capital improvements made since the purchase of the unit. Eligible capital improvements shall be those that render the unit suitable for a larger household or that add an additional bathroom. In no event shall the maximum sales price of an improved housing unit exceed the limits of affordability for the larger household.
(2)
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 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.
P.
Control periods for restricted rental units.
(1)
Control periods for restricted rental units shall be in accordance with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and each restricted rental unit shall remain subject to the requirements of this section for a period of at least 30 years, until the Borough of Fort Lee takes action to release the unit from such requirements. Prior to such action, a restricted rental unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
(2)
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 recorded by the developer or seller with the land records office of Bergen County. A copy of the filed, recorded document shall be provided to the Administrative Agent within 30 days of the receipt of a certificate of occupancy.
(3)
A restricted rental unit shall remain subject to the affordability controls of this article, despite the occurrence of any of the following events:
Q.
Price restrictions for rental units; leases.
(1)
A written lease shall be required for all restricted rental units, except for units in assisted living residences, 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.
(2)
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.
(3)
Application fees (including the charge for any credit check) shall not exceed 5% of the monthly rent of the applicable restricted unit and shall be payable to the Administrative Agent to be applied to the costs of administering the controls applicable to the unit as set forth in this article.
(4)
No rent control ordinance or other pricing restriction shall be applicable to the affordable units in any development in which at least 15% of the total number of dwelling units are restricted rental units in compliance with this article.
R.
Tenant income eligibility.
(1)
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:
(a)
Very-low-income rental units shall be reserved for households with a gross household income less than or equal to 30% of the regional median household income by household size.
(b)
Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of the regional median household income by household size.
(c)
Moderate-income rental units shall be reserved for households with a gross household income less than 80% of the regional median household income by household size.
(2)
The Administrative Agent shall certify a household as eligible for a restricted rental unit when the household is a very-low-income household, a 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:
(a)
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;
(b)
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;
(c)
The household is currently in substandard or overcrowded living conditions;
(d)
The household documents the existence of assets with which the household proposes to supplement the rent payments; or
(e)
The household documents reliable anticipated third-party assistance from an outside source, such as a family member, in a form acceptable to the administrative agent and the owner of the unit.
[1]
Editor's Note: This ordinance also changed the title of this article from "Inclusionary Zoning" to "Affordable Housing Ordinance."