[Amended 11-23-2021 by Ord. No. 2021-OR-032]
A.
This article of the Code shall be known as the "Affordable Housing
Ordinance of the Township."
B.
This article sets forth regulations regarding the very-low-, low-,
and moderate-income housing units in the Township consistent with
the provisions known as the "Substantive Rules of the New Jersey Council
on Affordable Housing," N.J.A.C. 5:93 et seq.,[1] the Uniform Housing Affordability Controls ("UHAC"), N.J.A.C.
5:80-26.1 et seq., except where modified by the requirements for very-low-income
housing as established in N.J.S.A. 52:27D-329.1 as reflected in the
terms of a settlement agreement between the Township and Fair Share
Housing Center ("FSHC") such that the statutory requirement to provide
very-low-income units equal to 13% of affordable units approved and
constructed after July 17, 2008, to be affordable households at 30%
of the regional median income, overrides the UHAC requirement that
10% of all low- and moderate-income units must be affordable at 35%
of the regional median income, and the Township's constitutional obligation
to provide a fair share of affordable housing for very-low-, low-,
and moderate-income households.
(1)
This article is intended to assure that very-low-, low- and moderate-income
units ("affordable units") are created with controls on affordability
over time and that very-low-, low- and moderate-income households
shall occupy these units. This article shall apply to all inclusionary
developments and 100% affordable developments (including those funded
with low-income housing tax credit financing), except where inconsistent
with applicable law.
(2)
This article implements and incorporates the Fair Share Plan and
addresses the requirements of the Mount Laurel Doctrine, as may be
amended and supplemented.
[1]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b, Chapter
93, Substantive Rules of the New Jersey Council on Affordable Housing
for the Period Beginning June 6, 1994, expired on 10-16-2016.
C.
Specifically, the regulations established by this article are also
intended to:
(1)
Provide housing opportunities for very-low-, low-, and moderate-income
families in order to meet the existing and anticipated housing needs
of such persons, maintain a socioeconomic mix in the community, provide
a range of housing types dispersed throughout the community in a suitable
living environment, and satisfy the community's obligation to provide
a fair share of the region's housing needs;
(2)
Assure that the very-low-, low-, and moderate-income units constructed
under this program continue to remain available to very-low-, low-,
and moderate-income households through controls on rental and resale
prices to be exercised under the guidance of the Township's administrative
agent;
(3)
Provide for housing opportunities for those who work in the Township
and provide the community with essential services, but who cannot
currently afford to live in the community;
(4)
Preserve the Township's environmental and natural resources and avoid
potential hazards thereto in anticipation of future development;
(5)
Provide measures to assure that rehabilitated renter- or owner-occupied
housing units that are rehabilitated and improved to Code standards
are subject to affordability controls;
(6)
Encourage innovations in housing design, layout and land development
techniques, and provide for necessary facilities for such developments;
(7)
Encourage retention and preservation of woodlands, surface water,
swamps, aquifers, recharge areas, poorly drained soils, floodplains
and other open space areas for aesthetic and scenic beauty, passive
recreation, rejuvenation of resources and preservation of the ecological
systems of the Township;
(8)
Avoidance of cost-generative or expense-prohibitive procedures, practices,
or requirements where reasonable alternatives exist which still protect
the health, safety and welfare of the community; and
(9)
Provide that developments that create affordable housing demand within
the Township share in the burden of providing such affordable housing,
including commercial and institutional developments and construction.
The following words and terms, when used in this article, shall
have the following meanings given in this section, unless the context
clearly indicates otherwise:
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.[1]
The entity designated by the Township to administer affordable
units in accordance with this article, N.J.A.C. 5:93,[2] and UHAC (N.J.A.C. 5:80-26.1).
A regional marketing strategy designed by the Township to
attract buyers and/or renters of affordable units pursuant to N.J.A.C.
5:80-26.15.
The average percentage of median income at which new restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent level that is within the means of a
low- or moderate-income household as defined within N.J.A.C. 5:93-7.4,[3] and, in the case of an ownership unit, that the sales
price for the unit conforms to the standards set forth in N.J.A.C.
5:80-26.6, as may be amended and supplemented, and, in the case of
a rental unit, that the rent for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A development included in or approved pursuant to the Housing
Plan Element and Fair Share Plan or otherwise intended to address
the Township'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 the Township's Fair Share Plan prepared
or implemented to address the Township's fair share obligation.
A housing unit proposed or created pursuant to the Act and
approved for crediting by the Court or funded through an affordable
housing trust fund, or both.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development wherein the unit is situated
are 62 years of age or older; or
At least 80% of the units are occupied by one person who is
55 years of age or older; or
The development has been designated by the Secretary of the
U.S. Department of Housing and Urban Development as "housing for older
persons" as defined in Section 807(b)(2) of the Fair Housing Act,
42 U.S.C. § 3607.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A building in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include, but are not limited
to: transitional facilities for the homeless; Class A, B, C, D and
E boarding homes as regulated by the State of New Jersey Department
of Community Affairs; residential health care facilities as regulated
by the New Jersey Department of Health; group homes for the developmentally
disabled and mentally ill as licensed and/or regulated by the New
Jersey Department of Human Services; and congregate living arrangements.
A facility which is licensed by the 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.
Apartment units offer, at a minimum, one unfurnished room, a private
bathroom, a kitchenette, and a lockable door on the unit entrance.
A household that has been certified by an administrative
agent as a very-low-income, low-income or moderate-income household.
The New Jersey Council on Affordable Housing, as established
by the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.),
which has primary jurisdiction for the administration of housing obligations
in accordance with sound regional planning consideration in the state.
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
requires the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
Any person, partnership, association, joint venture, company,
agency, 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 permitted in N.J.A.C. 5:93-8.8.[4]
The assessed value of a property divided by the current average
ratio of assessed-to-true value for the Township, as determined in
accordance with N.J.S.A. 54:1-35a through 54:1-35c.
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing while making optimum use of existing infrastructure and community
services.
A development containing both affordable units and market-rate
units. This term includes, but is not limited to, new construction,
the conversion of a nonresidential building to residential use and
the creation of new affordable units through the gut rehabilitation
or reconstruction of a vacant residential building.
Either:
An increase in residential density, i.e., the number of dwelling
units per acre;
An increase in floor area ratio (FAR) for nonresidential development;
or
Conversion of an existing structure that uses the structure
more intensely, and which results in an increase in the equalized
assessed value of the improved structure, as demonstrated by, but
not limited to:
A judgment issued by the Superior Court of New Jersey approving
a Township's plan to satisfy its fair share obligation.
A household with a total gross annual household income equal
to 50% or less of the regional median household income by household
size.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building, which
include, but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement and load-bearing structural
systems.
Housing not restricted to 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 the Township pursuant to this article,
by COAH or a successor entity approved by the Superior Court of New
Jersey.
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 spouses; the transfer of ownership between former
spouses ordered as a result of a judicial decree of divorce or judicial
separation, but not including sales to third parties; the transfer
of ownership between family members as a result of inheritance; the
transfer of ownership through an executor's deed to a Class A beneficiary
and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by duly adopted regional income limits published annually
by COAH or a successor entity.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6 et seq.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
A dwelling unit, whether a rental unit or an ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as amended and supplemented, but does not include a market-rate unit
financed under the Urban Homeownership Recovery Program ("UHORP")
or Market Oriented Neighborhood Investment ("MONI") program.
The percentage of housing units devoted to very-low-, low-
and moderate-income households within an inclusionary development.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the regional median household income by household
size.
A restricted unit that is affordable to a very-low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for purposes of a rehabilitation
program.
[1]
Editor's Note: See now N.J.A.C. 5:23-3.14(b).
[2]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b, Chapter
93, Substantive Rules of the New Jersey Council on Affordable Housing
for the Period Beginning June 6, 1994, expired on 10-16-2016.
[3]
Editor's Note: N.J.A.C. 5:93-7.4 expired 10-16-2016.
[4]
Editor's Note: N.J.A.C. 5:93-8.8 expired 10-16-2016.
The Township shall comply with the following monitoring and
reporting requirements regarding the status of the implementation
of its Court-approved Housing Plan Element and Fair Share Plan:
A.
Beginning on January 15, 2022, and on every anniversary of that date
thereafter through July 1, 2025, the Township agrees to provide annual
reporting of its Affordable Housing Trust Fund activity to the New
Jersey Department of Community Affairs ("NJDCA"), COAH, or Local Government
Services ("NJLGS"), or other entity designated by the State of New
Jersey, with a copy provided to FSHC and posted on the municipal website,
using forms developed for this purpose by the NJDCA, COAH, or NJLGS.
The reporting shall include an accounting of all Affordable Housing
Trust Fund activity, including the source and amount of funds collected
and the amount and purpose for which any funds have been expended.
B.
Beginning on January 15, 2022, and on every anniversary thereafter
of that date through July 1, 2025, the Township agrees to provide
annual reporting of the status of all affordable housing activity
within the Township through posting on the municipal website with
a copy of such posting provided to FSHC, using forms previously developed
for this purpose by COAH or any other forms endorsed by the Special
Master and FSHC.
C.
By July 1, 2022, as required pursuant to N.J.S.A. 52:27D-313, the
Township will post on its municipal website, with a copy provided
to FSHC, a status report as to its implementation of its plan and
an analysis of whether any unbuilt sites or unfulfilled mechanisms
continue to present a realistic opportunity and whether any mechanisms
or plan components to meet unmet need should be revised or supplemented.
D.
By July 1, 2022, and every third year thereafter, as required by
N.J.S.A. 52:27D-329.1, the Township will post on its municipal website,
with a copy provided to FSHC, a status report as to its satisfaction
of its very-low-income requirements, including its family very-low-income
requirements. Such posting shall invite any interested party to submit
written comments to the Township and Fair Share Housing Center on
issues regarding said requirements.
A.
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 Township pursuant to the
Township's most recently adopted Housing Plan Element and Fair Share
Plan.
B.
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.
C.
Projects receiving Federal Low-Income Housing Tax Credit financing
shall comply with the income and bedroom distribution requirements
of N.J.A.C. 5:80-26.3 (with the exception that the UHAC requirement
for 10% of the affordable units in rental projects being required
to be at 35% of median income be modified as required by N.J.S.A.
52:27D-329.1 to 13% of affordable units within each bedroom distribution
in such projects shall be required to be at 30% of median income)
and the length of the affordability controls applicable to such projects
shall be not less than a thirty-year compliance period plus a fifteen-year
extended use period.
A.
A multifamily development providing a minimum of five new housing
units at a density of six or more units per acre, created through
a municipal rezoning permitting multifamily residential housing where
not previously permitted; use variance; a density variance increasing
the permissible density at the site; or redevelopment plan or rehabilitation
plan, is required to include in the development a minimum affordable
housing set-aside of 20%.
B.
In the event the number of affordable housing units to be provided
includes a fraction, the number shall be rounded up if the fractional
amount is 0.5 or greater and rounded down if the fractional amount
is less than 0.5. The developer shall provide a payment in lieu of
constructing affordable units for the fraction of a unit less than
0.5. If the number of market-rate units permitted includes a fraction,
the number shall be rounded down.
C.
At least 50% of the affordable units in each development shall be
affordable to low-income households. At least 13% of all affordable
units within each bedroom distribution in rental developments shall
be affordable to very-low-income households.
D.
All affordable units, including bedroom distribution thereof, shall
be governed by the controls on affordability and affirmatively marketed
in conformance with N.J.A.C. 5:80-26.1 et seq., or any successor regulation,
and all other applicable laws.
E.
No subdivision shall be permitted or approved for the purpose of
avoiding compliance with this requirement. A developer may not, for
example, subdivide a project into two lots and then make or plan each
of them to produce a number of units just less than the threshold.
F.
This requirement does not give any developer the right to any such
rezoning, variance, redevelopment designation or redevelopment or
rehabilitation plan approval, or any other such relief, or establish
any obligation on the part of the Township to grant such rezoning,
variance, redevelopment designation, redevelopment or rehabilitation
plan approval, or other such or further relief.
G.
This Township-wide mandatory set-aside requirement does not apply
to any sites or specific zones otherwise identified in the Township's
settlement agreement with FSHC or Fair Share Plan, for which density
and set-aside requirements shall be governed by the specific standards
as set forth therein. The Township reserves the ability to determine
whether to extend the applicability of the mandatory set-aside provision
after July 7, 2025.
A.
The administration of an alternative living arrangement shall be
in compliance with N.J.A.C. 5:93-5.8[1] and UHAC, with the following exceptions:
(1)
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
(2)
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
[1]
Editor's Note: N.J.A.C. 5:93-5.8 expired 10-16-2016.
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.
A.
In inclusionary developments, the following schedule shall be followed:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percentage of Low- and Moderate-Income Units Completed
|
|---|---|
|
25%
|
0%
|
|
25% + 1 unit
|
10%
|
|
26%
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
B.
This schedule shall refer to the certificates of occupancy issued
by the municipal building officer.
A.
Low-/moderate-income split and bedroom distribution of affordable
housing units.
(1)
The fair share obligation shall be divided equally between low- and
moderate-income units, except that where there is an odd number of
affordable housing units, the extra unit shall be a low-income unit.
At least 13% of all restricted rental units within each bedroom distribution
shall be very-low-income units (affordable to a household earning
30% or less of regional median income by household size). The very-low-income
units shall be counted as part of the required number of low-income
units within the development.
(2)
In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be very-low- or low-income
units.
(3)
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units.
(b)
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
(c)
At least 20% of all low- and moderate-income units shall be
three-bedroom units;
(d)
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(4)
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
This standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
B.
Accessibility requirements.
(1)
The first floor of all restricted townhouse dwelling units and all
restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-3.14 et seq., and the following:
(2)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
(a)
An adaptable toilet and bathing facility on the first floor;
and
(b)
An adaptable kitchen on the first floor; and
(c)
An interior accessible route of travel on the first floor; and
(d)
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
and
(e)
If not all the foregoing requirements in Subsection B(2)(a) through (d) can be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit; but if all of the terms of Subsection B(2)(a) through (d) above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit; and
(f)
An accessible entranceway as set forth at N.J.S.A. 52:27D-311a
et seq., and the Barrier Free Subcode, N.J.A.C. 5:23-3.14 et seq.,
or evidence that the Township 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 Township's Affordable Housing Trust Fund sufficient to
install accessible entrances in 10% of the affordable units that have
been constructed with adaptable entrances.
[3]
The funds deposited under Subsection B(2)(f)[2] above shall be used by the Township for the sole purpose of making the adaptable entrance of an affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[4]
The developer of the restricted units shall submit a design
plan and cost estimate to the Construction Official of the Township
for the conversion of adaptable to accessible entrances.
[5]
Once the Construction Official has determined that the design
plan to convert the unit entrances from adaptable to accessible meet
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-3.14 et
seq., and that the cost estimate of such conversion is reasonable,
payment shall be made to the Township's Affordable Housing Trust Fund
in care of the Township's CFO, or their designee, who shall ensure
that the funds are deposited into the Affordable Housing Trust Fund
and appropriately earmarked.
(g)
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is site impracticable to meet
the requirements. Determinations of site impracticability shall be
in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-3.14 et
seq.
C.
Design.
(1)
In inclusionary developments, to the extent possible, low- and moderate-income
units shall be integrated with the market units, and not situated
so as to be in less desirable locations than the other units in the
development. This shall mean that low- and moderate-income units shall
not be concentrated in separate building(s) or in separate area(s)
from the market-rate units. In buildings with multiple dwelling units,
this shall mean that the low- and moderate-income units shall be generally
distributed within each building with market units. The residents
of the low- and moderate-income units shall have full and equal access
to all of the amenities, common areas, and recreation areas and facilities
as the residents of the market-rate units.
(2)
In inclusionary developments, very-low-, low- and moderate-income
residents shall have and enjoy access equal to the market units to
all common open space(s) and elements, amenities, public facilities,
shopping facilities, and public transportation than the market units.
(3)
In inclusionary developments, the low- and moderate-income units
shall be of the same average square footage and design as market-rate
units of the same bedroom size.
D.
Maximum rents and sales prices.
(1)
In establishing rents and sales prices of affordable housing units,
the administrative agent shall follow the procedures set forth in
UHAC, utilizing the most recently published regional weighted average
of the uncapped Section 8 income limits published by HUD and the calculation
procedures as approved by the Court and detailed herein.
(a)
Regional income units shall be established for the region that
the Township is located within (i.e., Region 5) based on the median
income by household size, which shall be established by a regional
weighted average of the uncapped Section 8 income limits published
by HUD. To compute this regional income limit, the HUD determination
of median county income for a family of four is multiplied by the
estimated households within the county according to the most recent
decennial census. The resulting product for each county within the
housing region is summed. The sum is divided by the estimated total
households from the most recent decennial census in the Township's
housing region. This quotient represents the regional weighted average
of median income for a household of four. The income limit for a moderate-income
unit for a household of four shall be 80% of the regional weighted
average median income for a family of four. The income limit for a
low-income unit for a household of four shall be 50% of the HUD determination
of the regional weighted average median income for a family of four.
The income limit for a very-low-income unit for a household of four
shall be 30% of the regional weighted average median income for a
family of four. These income limits shall be adjusted by household
size based on multipliers used by HUD to adjust median income by household
size. In no event shall the income limits be less than those for the
previous year.
(b)
The 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 annually by the Township by taking the percentage increase of the income limits calculated pursuant to Subsection D(1)(a) above over the previous year's income limits, and applying the same percentage increase to the regional asset limit from the prior year. In no event shall the regional asset limit be less than that for the previous year.
(2)
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted rental units
shall be affordable to households earning no more than 52% of median
income.
(3)
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units, provided that at least 13% of all low-
and moderate-income rental units shall be affordable to very-low-income
households, which very-low-income units shall be part of the low-income
requirement.
(4)
The maximum sales price of restricted ownership units within each
affordable development shall be affordable to households earning no
more than 70% of median income, and each affordable development must
achieve an affordability average of 55% for restricted ownership units;
in achieving this affordability average, moderate-income ownership
units must be available for at least three different sales prices
for each bedroom type, and low-income ownership units must be available
for at least two different sales prices for each bedroom type.
(5)
In determining the initial sales prices and rent levels for compliance
with the affordability average requirements for restricted units other
than assisted living facilities and age-restricted developments, the
following standards shall be used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
(6)
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units in
assisted living facilities and age-restricted developments, the following
standards shall be used:
(7)
The initial purchase price for all restricted ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowners' and private mortgage insurance and condominium or homeowners'
association fees, does not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4;
provided, however, that the price shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3.
(8)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
size household, including an allowance for tenant-paid utilities,
as determined by N.J.A.C. 5:80-26.4; provided, however, that the rent
shall be subject to the affordability average requirement of N.J.A.C.
5:80-26.3.
(9)
The price of owner-occupied low- and moderate-income units may increase
annually based on the percentage increase in the regional median income
limit for each housing region. In no event shall the maximum resale
price established by the administrative agent be lower than the last
recorded purchase price.
(10)
The rents of very-low-, low-, and moderate-income units may
be increased annually based on the permitted percentage increase in
the Housing Consumer Price Index for the Northeast Urban Area. This
increase shall not exceed 9% in any one year. Rent increases for units
constructed pursuant to low-income housing tax credit regulations
shall be indexed pursuant to the regulations governing low-income
housing tax credits.
A.
Affordable units shall utilize the same type of heating source as
market units within an inclusionary development.
B.
Tenant-paid utilities included in the utility allowance shall be
set forth in the lease and shall be consistent with the utility allowance
approved by HUD for the Section 8 program.
A.
In referring certified households to specific restricted units, the
administrative agent shall, to the extent feasible and without causing
an undue delay in the occupancy of a unit, strive to:
A.
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, and each restricted ownership unit shall
remain subject to the requirements of this article for a period of
at least 30 years from the date of initial occupancy, unless and until
the Township, in its sole discretion, takes action to extend or 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 for a period of at least 30 years. Notwithstanding said
control period, rehabilitated owner-occupied housing units that are
improved to Code standards shall be subject to affordability controls
for a period of 10 years.
B.
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
C.
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the administrative agent shall determine
the restricted price for the unit and shall also determine the nonrestricted
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value without the restrictions in place.
D.
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the administrative agent a recapture
note obligating the purchaser (as well as the purchaser's heirs, successors
and assigns) to repay, upon the first nonexempt sale after the unit's
release from the restrictions set forth in this article, an amount
equal to the difference between the unit's nonrestricted fair market
value and its restricted price, and the recapture note shall be secured
by a recapture lien evidenced by a duly recorded mortgage on the unit.
E.
The affordability controls set forth in this article shall remain
in effect despite the entry and enforcement of any judgment of foreclosure,
including foreclosure upon tax and other lien certificates, with respect
to restricted ownership units.
F.
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all Code standards upon the first
transfer of title following the removal of the restrictions provided
under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
Price restrictions for restricted ownership units shall be in
accordance with N.J.A.C. 5:80-26.1, 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 master deeds of inclusionary developments shall provide no distinction
between the condominium or homeowners' association fees and special
assessments paid by low- and moderate-income purchasers and those
paid by market purchasers.
D.
The owners of restricted ownership units may apply to the administrative agent to increase the maximum sales price for the unit on the basis of anticipated capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household or the addition of a bathroom. See § 330-51.
A.
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, 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 Township Council, and subject to the Court's approval,
permit a moderate-income purchaser to buy a low-income unit if and
only if the administrative agent can demonstrate that there is an
insufficient number of eligible low-income purchasers in the housing
region to permit prompt occupancy of the unit and all other reasonable
efforts to attract a low-income purchaser, including pricing and financing
incentives, have failed. Any such low-income unit that is sold to
a moderate-income household shall retain the required pricing and
pricing restrictions for a low-income unit.
C.
A certified household that purchases a restricted ownership unit
must occupy it as the certified household's principal residence and
shall not lease the unit; provided, however, that the administrative
agent may permit the owner of a restricted ownership unit, upon application
and a showing of hardship, to lease the restricted unit to another
certified household for a period not to exceed one year.
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, homeowners' and private mortgage insurance
and condominium or homeowners' association fees, as applicable) does
not exceed 33% of the household's eligible monthly income.
A.
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the owner shall apply to the administrative agent
for a determination, in writing, that the proposed indebtedness complies
with the provisions of this section, and the administrative agent
shall issue such determination prior to the owner incurring such indebtedness.
B.
With the exception of first purchase money mortgages, neither an
owner nor a lender shall at any time cause or permit the total indebtedness
secured by a restricted ownership unit to exceed 95% of the maximum
allowable resale price of the unit, as such price is determined by
the administrative agent in accordance with N.J.A.C. 5:80-26.6(b).
A.
The owners of restricted ownership units may apply to the administrative
agent to increase the maximum sales price for the unit on the basis
of capital improvements made since the purchase of the unit. Eligible
capital improvements shall be those that render the unit suitable
for a larger household or that add an additional bathroom. In no event
shall the maximum sales price of an improved housing unit exceed the
limits of affordability for the larger household.
B.
Upon the resale of a restricted ownership unit, all items of property
that are permanently affixed to the unit or were included when the
unit was initially restricted (for example, refrigerator, range, washer,
dryer, dishwasher, wall-to-wall carpeting) shall be included in the
maximum allowable resale price. Other items may be sold to the purchaser
at a reasonable price that has been approved by the administrative
agent at the time of the signing of the agreement to purchase. The
purchase of central air conditioning installed subsequent to the initial
sale of the unit and not included in the base price may be made a
condition of the unit resale, provided the price, which shall be subject
to ten-year, straight-line depreciation, has been approved by the
administrative agent. Unless otherwise approved by the administrative
agent, the purchase of any property other than central air conditioning
shall not be made a condition of the unit resale. The owner and the
purchaser must personally certify at the time of closing that no unapproved
transfer of funds for the purpose of selling and receiving property
has taken place at the time of or as a condition of resale.
A.
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11. Each restricted rental unit shall remain
subject to the requirements of this article for a period of at least
30 years from the date of initial occupancy, unless and until the
Township, in its sole discretion, takes action to extend or 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, for a period of at least 30 years.
(1)
Notwithstanding said control period, the following shall apply:
(a)
Restricted rental units created as part of a development receiving
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)
Rehabilitated renter-occupied housing units that are improved
to Code standards shall be subject to affordability controls for a
period of 10 years.
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 Burlington County
Clerk. A copy of the filed document shall be provided to the administrative
agent within 30 days of the receipt of a certificate of occupancy.
C.
A restricted rental unit shall remain subject to the affordability
controls of this article despite the occurrence of any of the following
events:
A.
A written lease shall be required for all restricted rental units,
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the administrative
agent.
B.
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the administrative agent.
C.
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the administrative agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this article.
D.
No rent control ordinance or other pricing restriction shall be applicable
to either the market units or the affordable units in any development
in which at least 15% of the total number of dwelling units are restricted
rental units in compliance with this article.
A.
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
and shall be determined as follows:
(1)
Very-low-income rental units shall be reserved for households with
a gross household income less than or equal to 30% of the regional
median household income by household size.
(2)
Low-income rental units shall be reserved for households with a gross
household income less than or equal to 50% of the regional median
household income by household size.
(3)
Moderate-income rental units shall be reserved for households with
a gross household income less than 80% of the regional median household
income by household size.
B.
The administrative agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income household,
low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(1)
The household currently pays more than 35% (40% for households eligible
for age-restricted units) of its gross household income for rent,
and the proposed rent will reduce its housing costs;
(2)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(3)
The household is currently in substandard or overcrowded living conditions;
(4)
The household documents the existence of assets with which the household
proposes to supplement the rent payments; or
(5)
The household documents reliable anticipated third-party assistance
from an outside source such as a family member in a form acceptable
to the administrative agent and the owner of the unit.
A.
The Mayor, with the advice and consent of Council, shall appoint
a specific municipal employee to serve as a Municipal Housing Liaison
responsible for overseeing the Township's affordable housing program
in coordination with the administrative agent, including overseeing
the administration of affordability controls on the affordable units
and the affirmative marketing of available affordable units in accordance
with the Township's Affirmative Marketing Plan; fulfilling monitoring
and reporting requirements; and supervising administrative agent(s).
The Municipal Housing Liaison may be a full- or part-time municipal
employee.
B.
Subject to the approval of the Court, the Township shall designate
one or more administrative agent(s) to administer and to affirmatively
market the affordable units constructed in the Township in accordance
with UHAC and this article. An operating manual for each affordable
housing program shall be provided by the administrative agent(s) to
be adopted by resolution of the governing body and subject to approval
of the Court. The operating manual(s) shall be available for public
inspection in the office of the Township Clerk, in the office of the
Municipal Housing Liaison, and in the office(s) of the administrative
agent(s). The Municipal Housing Liaison shall supervise the work of
the administrative agent(s). Specifically, the role of the Municipal
Housing Liaison as are follows:
[Amended 12-13-2022 by Ord. No. 2022-OR-036]
(1)
The
Municipal Housing Liaison shall be responsible for oversight and administration
of the affordable housing program for Burlington Township, including
the following responsibilities, which may not be contracted out to
the administrative agent:
(a)
Serving as Burlington Township’s primary point of contact for
all inquiries from the state, affordable housing providers, administrative
agents and interested households;
(b)
Monitoring the status of all restricted units in Burlington Township’s
Fair Share Plan;
(c)
Compiling, verifying, submitting and posting all monitoring reports
as required by the Court and by this chapter;
(d)
Coordinating meetings with affordable housing providers and administrative
agents, as needed; and
(e)
Attending continuing education opportunities on affordability controls,
compliance monitoring and affirmative marketing at least annually
and more often as needed.
An administrative agent shall be an independent entity serving
under contract to and reporting to the Township. The fees of the administrative
agent shall be paid by the owners of the affordable units for which
the services of the administrative agent are required. The administrative
agent shall perform the duties and responsibilities of an administrative
agent as set forth in UHAC, including those set forth in N.J.A.C.
5:80-26.14, 5:80-26.16 and 5:80-26.18 thereof, which include:
A.
Affirmative marketing.
(1)
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Affirmative Marketing Plan of
the Township and the provisions of N.J.A.C. 5:80-26.15; and
(2)
Providing counseling or contracting to provide counseling services
to low- and moderate-income applicants on subjects such as budgeting,
credit issues, mortgage qualification, rental lease requirements,
and landlord/tenant law.
B.
Household certification.
(1)
Soliciting, scheduling, conducting and following up on interviews
with interested households;
(2)
Conducting interviews and obtaining sufficient documentation of gross
income and assets upon which to base a determination of income eligibility
for a low- or moderate-income unit;
(3)
Providing written notification to each applicant as to the determination
of eligibility or noneligibility;
(4)
Requiring that all certified applicants for restricted units execute
a certificate substantially in the form, as applicable, of either
the ownership or rental certificates set forth in Appendices J and
K of N.J.A.C. 5:80-26.1 et seq.;
(5)
Creating and maintaining a referral list of eligible applicant households
living in the housing region and eligible applicant households with
members working in the housing region where the units are located;
(6)
Employing a random selection process as provided in the Affirmative
Marketing Plan when referring households for certification to affordable
units; and
(7)
Notifying the following entities of the availability of affordable
housing units in the Township: Fair Share Housing Center, New Jersey
State Conference of the NAACP, the Latino Action Network, Southern
Burlington County NAACP, Supportive Housing Association, and New Jersey
Housing Resource Center.
C.
Affordability controls.
(1)
Furnishing to attorneys or closing agents forms of deed restrictions
and mortgages for recording at the time of conveyance of title of
each restricted unit;
(2)
Creating and maintaining a file on each restricted unit for its control
period, including the recorded deed with restrictions, recorded mortgage
and note, as appropriate;
(3)
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Burlington
County Clerk's office after the termination of the affordability controls
for each restricted unit;
(4)
Communicating with lenders regarding foreclosures; and
(5)
Ensuring the issuance of continuing certificates of occupancy or
certifications pursuant to N.J.A.C. 5:80-26.10.
D.
Resales and rerentals.
(1)
Instituting and maintaining an effective means of communicating information
between owners and the administrative agent regarding the availability
of restricted units for resale or rerental; and
(2)
Instituting and maintaining an effective means of communicating information
to low- (or very-low-) and moderate-income households regarding the
availability of restricted units for resale or rerental.
E.
Processing requests from unit owners.
(1)
Reviewing and approving requests for determination from owners of
restricted units who wish to take out home equity loans or refinance
during the term of their ownership that the amount of indebtedness
to be incurred will not violate the terms of this article;
(2)
Reviewing and approving requests to increase sales prices from owners
of restricted units who wish to make capital improvements to the units
that would affect the selling price, such authorizations to be limited
to those improvements resulting in additional bedrooms or bathrooms
and the depreciated cost of central air-conditioning systems;
(3)
Notifying the Township of an owner's intent to sell a restricted
unit; and
(4)
Making determinations on requests by owners of restricted units for
hardship waivers.
F.
Enforcement.
(1)
Securing annually from the Township a list of all for-sale affordable
housing units for which tax bills are mailed to absentee owners, and
notifying all such owners that they must either move back to their
unit or sell it;
(2)
Securing from all developers and sponsors of restricted units, at
the earliest point of contact in the processing of the project or
development, written acknowledgement of the requirement that no restricted
unit can be offered, or in any other way committed, to any person
other than a household duly certified to the unit by the administrative
agent;
(3)
Posting annually, in all rental properties (including two-family
homes), a notice as to the maximum permitted rent together with the
telephone number of the administrative agent where complaints of excess
rent or other charges can be made;
(4)
Sending annual mailings to all owners of affordable dwelling units,
reminding them of the notices and requirements outlined in N.J.A.C.
5:80-26.18(d)(4);
(5)
Establishing a program for diverting unlawful rent payments to the
Township's Affordable Housing Trust Fund; and
(6)
Creating and publishing a written operating manual for each affordable
housing program administered by the administrative agent, to be approved
by the Township Council and the Court, setting forth procedures for
administering the affordability controls.
G.
Retention of records, including affordable housing agreements, leases,
correspondence, inspections, and recorded deeds.
H.
Additional responsibilities.
(1)
The administrative agent shall have the authority to take all actions
necessary and appropriate to carry out its responsibilities hereunder.
(2)
The administrative agent shall prepare monitoring reports for submission
to the Municipal Housing Liaison in time to meet the Court-approved
monitoring and reporting requirements in accordance with the deadlines
set forth in this article.
(3)
The administrative agent shall attend continuing education sessions
on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
A.
The Township shall adopt, by resolution, an Affirmative Marketing
Plan, subject to approval of the Court, which is compliant with N.J.A.C.
5:80-26.15.
B.
The Affirmative Marketing Plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to housing units which are being marketed
by a developer, sponsor or owner of affordable housing. The Affirmative
Marketing Plan is intended to target those potentially eligible persons
who are least likely to apply for affordable units in that region.
It is a continuing program that directs marketing activities toward
Housing Region 5 and is required to be followed throughout the period
of restriction.
C.
The Affirmative Marketing Plan shall provide a regional preference
for all households that live or work, or both, in Housing Region 5,
comprising Burlington, Camden and Gloucester counties. Pursuant to
the New Jersey Fair Housing Act, N.J.S.A. 52:27D-311 et seq., a preference
for very-low-, low- and moderate-income veterans duly qualified under
N.J.S.A. 54:4-8.10 may also be exercised, provided an agreement to
this effect has been executed between the developer or landlord and
the Township prior to the affirmative marketing of the units.
D.
The Township has the ultimate responsibility for adopting the Affirmative
Marketing Plan and for the proper administration of the Affirmative
Marketing Program, including initial sales and rentals and resales
and rerentals. The administrative agent, as designated by the Township,
shall implement the Affirmative Marketing Plan to assure the affirmative
marketing of all affordable units.
E.
In implementing the Affirmative Marketing Plan, the administrative
agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
F.
The Affirmative Marketing Plan shall describe the media to be used
in advertising and publicizing the availability of housing. In implementing
the Affirmative Marketing Plan, the administrative agent shall consider
the use of language translations where appropriate.
G.
The affirmative marketing process for available affordable units
shall begin at least four months (120 days) prior to the expected
date of occupancy.
H.
Applications for affordable housing shall be available in several
locations, including, at a minimum, the county administration building
and/or the county library for each county within the housing region;
the Burlington Township Municipal Building; the Township library in
the Township; and the developer's rental office. Applications shall
be mailed to prospective applicants upon request.
I.
In addition to other affirmative marketing strategies, the administrative
agent shall provide specific notice of the availability of affordable
housing units in the Township, and copies of the application forms,
to the following entities: Fair Share Housing Center, New Jersey State
Conference of the NAACP, the Latino Action Network, Southern Burlington
County NAACP, Supportive Housing Association, and New Jersey Housing
Resource Center.
J.
The costs of advertising, affirmative marketing, qualifying individuals
and households, recording of property instruments, and initial sales
and rental transactions associated with a low- and moderate-income
housing development or affordable unit(s) shall be the responsibility
of the developer, sponsor or owner, or some combination thereof. The
costs shall be established, specified, and set forth in the operating
manual.
K.
In the event of an administrative agent designated by a developer,
sponsor, or owner, said designated administrative agent shall have
all of the responsibilities as set forth herein, and shall adhere
to the same procedures for advertising, affirmative marketing, qualifying
individuals and households, recording of property instruments, and
initial sales and rental transactions as described herein for the
Township's administrative agent. After the initial sales transaction(s),
the designated administrative agent of the developer, sponsor or owner
shall assume the duties of an administrative agent for affordable
unit resales or subsequent rentals. The costs of administering the
specific affordable housing program shall be charged by the designated
administrative agent and the responsibility of the developer, sponsor
or owner, or some combination thereof. The designated administrative
agent for a developer, sponsor, or owner for affordable unit(s) shall
be responsible for all subsequent rentals of rental affordable units.
All administrative agent fees shall be paid by the developer, sponsor
or owner, or some combination thereof. Any changes in a designated
administrative agent of a developer, sponsor, or owner shall be approved
by the Township, in writing, prior to effectuating any such change.
A.
Upon the occurrence of a breach of any of the regulations governing
an affordable unit by an owner, developer or tenant, the Township
shall have all remedies provided at law or equity, including, but
not limited to, foreclosure, tenant eviction, a requirement for household
recertification, acceleration of all sums due under a mortgage, recuperation
of any funds from a sale or lease in violation of the regulations,
injunctive relief to prevent further violation of the regulations,
entry on the premises, and specific performance.
B.
After providing written notice of a violation to an owner, developer,
tenant of a low- (including very-low-income) and moderate-income unit
and advising the owner, developer or tenant of the penalties for such
violations, the Township may take the following action(s) against
the owner, developer or tenant, or some combination thereof, for any
violation that remains uncured for a period of 60 days after service
of the written notice:
(1)
The Township 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 or contractual obligations. If the owner,
developer, or tenant is adjudged by the Court to have violated any
provision of the regulations governing affordable housing units or
the terms of the affordable housing agreement, the owner, developer,
or tenant shall be subject to one or more of the following penalties,
at the discretion of the Court:
(a)
A civil penalty of not more than $500 per day, provided that
each and every day that the violation continues or exists shall be
considered a separate and specific violation of these provisions and
not a continuation of the initial offense;
(b)
In the case of an owner who has rented a very-low-, low- or
moderate-income unit in violation of the regulations governing affordable
housing units or terms of the affordable housing agreement, payment
into the Township Affordable Housing Trust Fund of the gross amount
of rent(s) and payment(s) illegally collected;
(c)
In the case of an owner who has rented a very-low-, low- or
moderate-income unit in violation of the regulations governing affordable
housing units or terms of the affordable housing agreement, payment
of an innocent tenant's reasonable relocation costs, as determined
by the Court.
(2)
The Township may file a court action in the Superior Court of New
Jersey seeking a judgment that would result in the termination of
the owner's equity or other interest in the unit, in the nature of
a mortgage foreclosure. Any such judgment shall be enforceable as
if the same were a judgment of default of the first purchase money
mortgage and shall constitute a lien against the very-low-, low- or
moderate-income unit.
(a)
The judgment shall be enforceable, at the option of the Township,
by means of an execution sale by the sheriff, at which time the very-low-,
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 Township,
including attorneys' fees. The violating owner shall have his or her
right to possession terminated as well as his or her title conveyed
pursuant to the sheriff's sale.
(b)
The proceeds of the sheriff's sale shall first be applied to
satisfy the first purchase money mortgage lien and any prior liens
upon the low- and moderate-income unit. The excess, if any, shall
be applied to reimburse the Township for any and all costs and expenses
incurred in connection with either the Court action resulting in the
judgment of violation or the sheriff's sale. In the event that the
proceeds from the sheriff's sale are insufficient to reimburse the
Township in full as aforesaid, the violating owner shall be personally
responsible for the full extent of such deficiency, in addition to
any and all costs incurred by the Township 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 Township 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 Township 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 Township. Any interest
accrued or earned on such balance while being held in escrow shall
belong to and shall be paid to the Township, whether such balance
shall be paid to the owner or forfeited to the Township.
(c)
Foreclosure by the Township 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 very-low-, low- and moderate-income unit. Title shall
be conveyed to the purchaser at the sheriff's sale, subject to the
restrictions and provisions of the regulations governing the affordable
housing unit. The owner determined to be in violation of the provisions
of this plan and from whom title and possession were taken by means
of the sheriff's sale shall not be entitled to any right of redemption.
(d)
If there are no bidders at the sheriff's sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the Township may acquire title to the very-low-, low-,
and moderate-income unit by satisfying the first purchase money mortgage
and any prior liens and crediting the violating owner with an amount
equal to the difference between the first purchase money mortgage
and any prior liens and costs of the enforcement proceedings, including
legal fees and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
(e)
Failure of the very-low-, low- and moderate-income unit to be
either sold at the sheriff's sale or acquired by the Township shall
obligate the owner to accept an offer to purchase from any qualified
purchaser which may be referred to the owner by the Township, with
such offer to purchase being equal to the maximum resale price of
the very-low-, low-, and moderate-income unit as permitted by the
regulations governing affordable housing units.
(f)
The owner shall remain fully obligated, responsible and liable
for complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
Appeals from all decisions of an administrative agent appointed
pursuant to this article shall be filed, in writing, as an action
in lieu of prerogative writ in the Superior Court, Law Division, in
the county with jurisdiction over the Township's affordable housing
proceedings, or in such other manner as the Superior Court of New
Jersey may direct.
A.
Purpose. This section establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance with N.J.S.A. 40:55D-8.1 to 40:55D-8.7 and N.J.S.A.
52:27D-329.2. Fees collected pursuant to this section shall be used
for the sole purpose of providing low- and moderate-income housing
in accordance with the Township's Court-approved spending plan. This
section shall be interpreted within the framework of COAH's rules
on development fees, codified at N.J.A.C. 5:93-8.[1]
[1]
Editor's Note: N.J.A.C. 5:93-8 expired 10-16-2016.
B.
Basic requirements.
(1)
COAH had previously approved ordinances adopting and amending Chapter 330, which established the Township's Affordable Housing Trust Fund. The Township's Development Fee Ordinance, which has been further amended and relocated herein, remains effective pursuant to the Superior Court's jurisdiction in accordance with N.J.A.C. 5:93-8.
(2)
At such time that the Court approves the Township's Third Round Housing
Plan Element and Fair Share Plan and the Third Round Spending Plan,
the Township may begin spending development fees in conformance with
N.J.A.C. 5:93-8 for the new Third Round Plan activities.
C.
Residential development fees.
(1)
Imposed fees.
(a)
Within all zoning 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.
(b)
When an increase in residential density pursuant to N.J.S.A.
40:55D-70d(5) (known as a "density variance") has been permitted,
developers may be required to pay a development fee of 6% of the equalized
assessed value for each additional unit that may be realized. However,
if the zoning on a site has changed during the two-year period preceding
the filing of such a variance application, the base density for the
purposes of calculating the bonus development fee shall be the highest
density permitted by right during the two-year period preceding the
filing of the variance application. Example: If an approval allows
four units to be constructed on a site that was zoned for two units,
the fees could equal 1.5% of the equalized assessed value on the first
two units; and the specified higher percentage up to 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.
(2)
Eligible exactions, ineligible exactions, and exemptions for residential
development.
(a)
Affordable housing developments, developments where the developer
is providing for the construction of affordable units elsewhere in
the Township, and developments where the developer has made a payment
in lieu of on-site construction of affordable units for a fraction
of an affordable housing unit less than 0.5 shall be exempt from development
fees.
(b)
Developments that have received preliminary or final site plan
approval prior to the adoption of a municipal development fee ordinance
shall be exempt from development fees unless the developer seeks a
substantial change in the approval. Where a site plan approval does
not apply, a zoning and/or building permit shall be synonymous with
preliminary or final site plan approval for this purpose. The fee
percentage shall be vested on the date that the building permit is
issued.
(c)
Owner-occupied residential buildings demolished as a result
of a fire, flood, or natural disaster and replaced with a substantially
similar residence shall be exempt from paying a development fee. If
the new owner-occupied residential building is not substantially similar
to the prior, demolished building, then the owner shall pay a development
fee based on the net increase in equalized assessed value.
(d)
In addition to the construction of new principal and/or accessory buildings, development fees shall be imposed and collected for the construction of additions or expansions to existing buildings, for the change or conversion of an existing building to accommodate a more intense use, and/or for the demolition and replacement of an existing building, except as a result of a natural disaster as covered under Subsection C(2)(c) above, provided that the development fee shall be calculated on the increase in the equalized assessed valued of the improved building.
D.
Nonresidential development fees.
(1)
Imposed fees.
(a)
Within all zoning districts, nonresidential developers, except
for developers of the types of development specifically exempted,
shall pay a fee equal to 2.5% of the equalized assessed value of the
land and improvements for all new nonresidential construction on an
unimproved lot or lots.
(b)
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 buildings to be used for nonresidential purposes.
(c)
Development fees shall be imposed and collected when an existing
building 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 building, 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.
(2)
Eligible exactions, ineligible exactions, and exemptions for nonresidential
development.
(a)
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.
(b)
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.
(c)
Nonresidential developments shall be exempt from the payment
of nonresidential development fees in accordance with the exemptions
required pursuant to N.J.S.A. 40:55D-8.4 and 40:55D-8.6, as specified
in Form N-RDF, State of New Jersey Nonresidential Development Certification/Exemption
form. Any exemption claimed by a developer shall be substantiated
by that developer.
(d)
A developer of a nonresidential development exempted from the
nonresidential development fee pursuant to P.L. 2008, c. 46,[2] shall be subject to it at such time the basis for the
exemption no longer applies and shall make the payment of the nonresidential
development fee, in that event, within three years after that event
or after the issuance of the final certificate of occupancy of the
nonresidential development, whichever is later.
[2]
Editor's Note: See N.J.S.A. 52:27D-329.1 et seq.
(e)
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 Township as a lien against the real property
of the owner.
E.
Collection procedures.
(1)
Upon the granting of a preliminary, final or other applicable approval
for a development, the applicable approving authority shall direct
its staff to notify the Construction Official responsible for the
issuance of a building permit.
(2)
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, State of New Jersey Nonresidential
Development Certification/Exemption, to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in Form N-RDF. The local tax assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
(3)
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.
(4)
Within 90 days of receipt of that notice, the local tax assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
(5)
The construction official responsible for the issuance of a final
certificate of occupancy shall notify the local tax assessor of any
and all requests for the scheduling of a final inspection on property
which is subject to a development fee.
(6)
Within 10 business days of a request for the scheduling of a final
inspection, the tax 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.
(7)
Should the Township 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 N.J.S.A. 40:55D-8.6(b).
(8)
Fifty percent of the development fee shall be collected at the time
of issuance of the building permit. The remaining portion shall be
collected at the issuance of the certificate of occupancy. The developer
shall be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of certificate
of occupancy.
(9)
Appeal of development fees.
(a)
A developer may challenge residential development fees imposed
by filing a challenge with the County Board of Taxation. Pending a
review and determination by the Board, collected fees shall be placed
in an interest-bearing escrow account by the Township. Appeals from
a determination of the Board may be made to the Tax Court in accordance
with the provisions of the State Uniform Tax 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.
(b)
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest- bearing escrow account by the Township.
Appeals from a determination of the Director may be made to the Tax
Court in accordance with the provisions of the State Uniform Tax 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.
F.
Affordable Fund.
(1)
There has been previously created a separate, interest-bearing Affordable
Housing Trust Fund which will continue to be maintained by the Chief
Financial Officer, or their designee, for the purpose of depositing
development fees collected from residential and nonresidential developers
and proceeds from the sale of units with extinguished controls.
(2)
The following additional funds shall be deposited in the Affordable
Housing Trust Fund and shall at all times be identifiable by source
and amount:
(a)
Payments in lieu of on-site construction of affordable units;
(b)
Developer-contributed funds to make 10% of the adaptable entrances
in a townhouse or other multistory attached development accessible;
(c)
Rental income from Township-operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with the Township's
affordable housing program.
(3)
The Township previously provided COAH with written authorization,
in the form of three-party escrow agreements between the Township,
said financial institution(s), and COAH, to permit COAH to direct
the disbursement of the funds as provided for in N.J.A.C. 5:93-8.[3] The Superior Court shall now have such jurisdiction to
direct the disbursement of the Township's trust funds per N.J.A.C.
5:93-8.
[3]
Editor's Note: N.J.A.C. 5:93-5.8 expired 10-16-2016.
(4)
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by the Court.
G.
Use of funds.
(1)
The expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the housing trust fund may be used
for any activity approved by the Court to address the Township's fair
share obligation and may be set up as a grant or revolving loan program.
Such activities include, but are not limited to, preservation or purchase
of housing for the purpose of maintaining or implementing affordability
controls, rehabilitation, new construction of affordable housing units
and related costs, accessory apartments, market to affordable, or
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 Plan Element and Fair Share Plan,
or any other activity as permitted pursuant to N.J.A.C. 5:93-8.16[4] and specified in the approved spending plan.
[4]
Editor's Note: N.J.A.C. 5:93-8.16 expired 10-16-2016.
(2)
Funds shall not be expended to reimburse the Township for past housing
activities absent approval of the Court, with notice to the Special
Master and Fair Share Housing Center.
(3)
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the municipal Fair Share
Plan. One-third of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning 30% or less of median income by region.
(a)
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, infrastructure assistance, and assistance with emergency
repairs.
(b)
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 Township's Court-approved spending plan.
(c)
Payments in lieu of constructing affordable units on site and
funds from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
(5)
No more than 20% of all revenues collected from development fees
may be expended on administration, including, but not limited to,
salaries and benefits for municipal employees or consultant fees necessary
to develop or implement a new construction program, a Housing Plan
Element and Fair Share Plan, and/or an affirmative marketing program.
In the case of a rehabilitation program, no more than 20% of the revenues
collected from development fees shall be expended for such administrative
expenses. Administrative funds may be used for income qualification
of households, monitoring the turnover of sale and rental units, and
compliance with the monitoring requirements set forth in the Court-approved
January 15, 2020, executed settlement agreement with Fair Share Housing
Center.
H.
Enforcement.
[Added 12-13-2022 by Ord. No. 2022-OR-036]
(1)
In
the event of a failure by the Township 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 NJ Super.
565 (Law Div. 2015) (aff'd 442 NJ 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 (NJLGS), 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 Township of Burlington,
or, if not practicable, then within the county or the housing region.
(2)
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 Township a reasonable opportunity to respond and/or
to remedy the non-compliant condition(s), and upon a finding of continuing
and deliberate noncompliance, determine to authorize NJLGS to direct
the expenditure of funds in the trust fund or impose such other remedies
as may be reasonable and appropriate to the circumstances.
Beginning on January 15, 2022, and in each year thereafter through
July 1, 2025, the Township shall provide annual reporting of trust
fund activity to the DCA, COAH, or NJLGS, or other entity designated
by the State of New Jersey, with a copy provided to Fair Share Housing
Center and posted on the municipal website, using forms developed
for this purpose by the DCA, COAH, or NJLGS. This reporting shall
include an accounting of all housing trust fund activity, including
the source and amount of funds collected and the amount and purpose
for which any funds have been expended.
The ability of the Township to impose, collect and expend development
fees shall expire with its Court-issued judgment of compliance and
repose unless the Township has filed an adopted Housing Plan Element
and Fair Share Plan with the Court or other appropriate jurisdiction,
has filed a declaratory judgment action, and has received the Court's
approval of its development fee ordinance. If the Township fails to
renew its ability to impose and collect development fees prior to
the expiration of its judgment of compliance and repose, it may be
subject to forfeiture of any or all funds remaining within its municipal
trust fund. Any funds so forfeited shall be deposited into the New
Jersey Affordable Housing Trust Fund established pursuant to N.J.S.A.
52:27D-320. The Township shall neither impose a residential development
fee on a development that receives preliminary or final site plan
approval after the expiration of its judgment of compliance and repose,
nor impose a development fee retroactively on such a development.
The Township shall not expend development fees after the expiration
of its judgment of compliance and repose.
